Com. v. Gambino, F. ( 2014 )

J-S66037-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
FRANCESCO GAMBINO, :
:
Appellee : No. 698 MDA 2014
Appeal from the Order entered on March 27, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, No. CP-36-CR-0005044-2012
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 21, 2014
The Commonwealth of Pennsylvania appeals from the Order granting
Francesco Gambino’s (“Gambino”) Motion to Suppress.1 We reverse and
remand for further proceedings.
In the early morning hours of July 22, 2012, at approximately 3:00
a.m., Officer Andrew Dobish (“Officer Dobish”) of the Manheim Police
Department was parked near the intersection of Lititz Pike and Keller Avenue
in Lancaster, Pennsylvania. Officer Dobish observed a dark convertible
vehicle, operated by Gambino, approach the intersection and then slow and
stop appropriately for a red light. N.T., 3/27/14, at 36. Gambino’s vehicle
1
The Commonwealth has certified that the ruling substantially handicaps its
prosecution. See Commonwealth v. Johnson, 86 A.3d 182, 185 (Pa.
2014) (stating that in criminal cases, the Commonwealth, pursuant to
Pa.R.A.P. 311(d), may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies that the order will
terminate or substantially handicap its prosecution of the case).
J-S66037-14
was in the designated left turn lane and, other than Officer Dobish’s police
car, no other vehicles were in the intersection or in the area. Id. at 37.
When the light turned green, Gambino’s vehicle turned left from Keller
Avenue onto Lititz Pike in an appropriate fashion, and then accelerated
quickly on Lititz Pike without loss of control or squealing of tires. Id. at 38.
Officer Dobish testified that Gambino had failed to use his left turn signal,
but conceded that there were no other vehicles for Gambino to signal to, and
that it is not uncommon for people to make that left turn and fail to use their
turn signals. Id. Additionally, Officer Dobish testified that he observes
drivers failing to signal when making a left turn at that intersection almost
every day, and that he does not pull over everybody who fails to signal. Id.
at 38-39.
Nevertheless, Officer Dobish followed Gambino’s vehicle as it
proceeded down Lititz Pike, whereupon it moved from the right lane to a
newly created right lane without signaling, and thereafter made a right turn
at the intersection of Oregon Pike without any unusual driving. Id. at 12,
41-42. Officer Dobish noticed no unusual driving as Gambino proceeded on
Oregon Pike and then slowed and stopped at a red light at the intersection
with Butler Avenue. Id. at 43. After the light turned green, Gambino
continued on Oregon Pike before turning right onto State Route 30. Id. at
45-46. Officer Dobish testified that he was “probably” going 95 miles per
hour to keep up with Gambino’s vehicle on Oregon Pike before turning right
-2-
J-S66037-14
onto Route 30. Id. at 46. While following Gambino’s vehicle on Route 30,
Officer Dobish used a VASCAR Plus speed tacking device to clock Gambino’s
speed at 78.4 miles per hour. Id. at 19-21. Thereafter, in a location
slightly outside of his primary jurisdiction, Officer Dobish stopped Gambino’s
vehicle. Id. at 22.
As he approached Gambino’s vehicle, Officer Dobish observed that
Gambino had watery and bloodshot eyes, and detected an odor of alcohol
coming from Gambino. Id. at 24. Officer Dobish testified that Gambino
admitted that he had a couple of drinks earlier in the evening. Id. at 25.
Officer Dobish administered a field sobriety test, which Gambino failed. Id.
at 26-29. Thereafter, Officer Dobish arrested Gambino, and he was charged
with driving under the influence (“DUI”)2 and speeding.3 Id at 29.
Gambino filed a Motion to Suppress, contending that the vehicle stop
was made without probable cause or a reasonable suspicion that Gambino
was either engaged in criminal conduct or had violated the Vehicle Code.
Motion to Suppress, 2/28/13, at ¶ 3. Following a suppression hearing, the
suppression court granted Gambino’s Motion to Suppress, stating as follows:
Well it is my assessment that I believe that Officer
Dobish’s intent when he left the Sunoco parking lot was to
investigate [Gambino] for drunk driving.
I honestly don’t see how there’s any plausible explanation
beyond that. I’ve heard testimony about these failure to signal
2
See 75 Pa.C.S.A. § 3802(a)(1).
3
See 75 Pa.C.S.A. § 3362(a)(2).
-3-
J-S66037-14
indications. However, [] [O]fficer [Dobish] himself has indicated
that he has rarely cited anyone for such violations.
So that[,] coupled with the fact that he was travelling, by
his admission, 95 miles per hour up Oregon Pike [] when
[Gambino], at least my recollection of the testimony is that there
is no indication of excessive speed in that area. [] Officer
[Dobish] testified that [Gambino] stopped at a red light at Butler
Avenue before he ever got on Route 30.
In my opinion, the lane signaling and the speeding are
nothing more that pretexts for what [Officer Dobish] intended to
do all along[,] which is to pull this vehicle over for suspicion of
drunk driving.
That has to be based on reasonable suspicion. I do not
believe that [] Officer [Dobish] had a reasonable suspicion at the
time the vehicle was pulled over to suspect that, and I am
therefore granting [Gambino’s] [M]otion to [S]uppress for that
reason.
N.T., 3/27/14, at 87-88; see also Suppression Court Opinion, 6/23/14, at 4
(wherein the suppression court stated that “[i]t is sensible to conclude that
at 3:00 [a.m.], with no traffic in the immediate vicinity, a reasonable police
officer would not have pursued [Gambino’s] vehicle for such a minor traffic
violation in the absence of an invalid purpose.”).
The Commonwealth filed a timely Notice of Appeal and a court-ordered
Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.
1925(b).
On appeal, the Commonwealth raises the following issue for our
review: “[w]hether the suppression court erred in granting [Gambino’s]
Motion to Suppress where the officer possessed the requisite probable cause
to stop [Gambino’s] vehicle for a violation of the Pennsylvania Motor Vehicle
-4-
J-S66037-14
Code[, 75 Pa.C.S.A. § 101, et seq. (“Vehicle Code”)]?” Commonwealth Brief
at 4 (capitalization omitted).
When the Commonwealth appeals from a suppression
order, we . . . 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. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013) (citation
omitted).
The Commonwealth contends that the suppression court erroneously
applied a reasonable suspicion standard in determining whether Officer
Dobish possessed the quantum of suspicion required to validate the stop of
Gambino’s vehicle. Commonwealth Brief at 10. The Commonwealth further
contends that regardless of whether Officer Dobish possessed reasonable
suspicion of DUI, he possessed probable cause to stop Gambino for violating
-5-
J-S66037-14
sections 3334 (relating to turning movements and required signals)4 and
3362 (relating to speed limits)5 of the Vehicle Code. Id. The
Commonwealth points to Officer Dobish’s testimony that that he observed
4
Section 3334 provides, in relevant part, as follows:
Turning movements and required signals.
(a) General rule. --Upon a roadway no person shall turn
a vehicle or move from one traffic lane to another or enter the
traffic stream from a parked position unless and until the
movement can be made with reasonable safety nor without
giving an appropriate signal in the manner provided in this
section.
***
75 Pa.C.S.A. § 3334(a).
5
Section 3362 provides, in relevant part, as follows:
Maximum speed limits.
(a) General rule. --Except when a special hazard exists that
requires lower speed for compliance with section 3361 (relating
to driving vehicle at safe speed), the limits specified in this
section or established under this subchapter shall be maximum
lawful speeds and no person shall drive a vehicle at a speed in
excess of the following maximum limits:
***
(2) 55 miles per hour in other locations.
(3) Any other maximum speed limit established under this
subchapter.
***
75 Pa.C.S.A. § 3362(a)(2), (3).
-6-
J-S66037-14
Gambino failing to signal while making a left turn and speeding at
approximately 78 miles per hour in a posted 55 mile per hour zone (using an
approved VASCAR Plus speed-timing device), and asserts that further
investigation would not help to establish these violations. Id. at 11, 13-14.
The Commonwealth contends that the suppression court erred by ruling that
Officer Dobish used the Vehicle Code violations as a “pretext” for stopping
Gambino for DUI, and by analyzing the stop under a “reasonable suspicion”
standard. Id. at 15-16. The Commonwealth argues that, by applying a
“reasonable suspicion” standard, the suppression court ignored evidence
that Officer Dobish had probable cause to stop Gambino due to his failure to
signal and speeding violations. Id. at 16. The Commonwealth contends
that, because Gambino violated the Vehicle Code in Officer Dobish’s
presence, Officer Dobish was permitted to execute a traffic stop of
Gambino’s vehicle, regardless of the nature of his investigation. Id. at 18.6
Any violation of the Vehicle Code legitimizes a stop, even if the stop is
merely a pretext for an investigation of some other crime. Whren v. U.S.,
6
The Commonwealth further contends that, because Officer Dobish obtained
probable cause to stop Gambino within his primary jurisdiction, he was
authorized to stop Gambino outside of his jurisdiction pursuant to 42
Pa.C.S.A. § 8953(a)(2) of the Municipal Police Jurisdiction Act.
Commonwealth Brief at 14. The Commonwealth also claims that Gambino
waived any claim regarding the absence of an agreement between the
Manheim Police Department and the Pennsylvania State Police, pursuant to
75 Pa.C.S.A. § 6109(a)(11), permitting Manheim officers to enforce the
speed limit on Route 30, because he failed to raise this issue as an
affirmative defense. Commonwealth Brief at 15. Because neither of these
arguments formed the basis for the suppression court’s decision, we need
not address them on appeal.
-7-
J-S66037-14
517 U.S. 806, 812-13 (1996); see also Arkansas v. Sullivan, 532 U.S.
769, 772 (2001) (holding that a traffic violation arrest will not be rendered
invalid by the fact that it was a mere pretext for a narcotics search); U.S. v.
Robinson, 414 U.S. 218, 221 n.1 (1973). This is true even if, as in the
instant case, the Vehicle Code violation witnessed is a minor offense. See
Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008) (stating that
“[t]he Fourth Amendment does not prevent police from stopping and
questioning motorists when they witness or suspect a violation of traffic
laws, even if it is a minor offense.”). Moreover, the Whren Court explained
that the “[s]ubjective intentions [of the officer] play no role in ordinary,
probable-cause Fourth Amendment analysis.” Whren, 517 U.S. at 813; see
also Chase, 960 A.2d at 120 (stating that, “[i]f police can articulate a
reasonable suspicion of a Vehicle Code violation, a constitutional inquiry into
the officer’s motive for stopping the vehicle is unnecessary.”).
Here, although the suppression court challenged the pretextual nature
of the stop, it accepted the uncontradicted evidence that Gambino had
violated section 3334(a) of the Vehicle Code by changing lanes of travel
without using his vehicle’s turn signal. See Suppression Court Opinion,
6/23/14, at
-8-
J-S66037-14
2-3.7
We conclude that the stop of Gambino’s vehicle was lawful.
Accordingly, the suppression court improperly granted Gambino’s Motion to
Suppress.
Order reversed case remanded for further proceedings; Superior Court
jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2014
7
The suppression court found Officer Dobish’s testimony that he had to
travel 95 miles per hour to catch up with Gambino’s vehicle to be incredible.
See Trial Court Opinion, 6/23/14, at 2-3. The trial court did not address or
discuss Officer Dobish’s testimony regarding his use of the VASCAR Plus
speed timing device to clock Gambino speeding at 78.4 miles per hour, in
violation of section 3362(a) of the Vehicle Code.
-9-