Com. v. Vith, J. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
JASMINE VITH, : No. 540 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, March 6, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0013701-2013
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 28, 2015
Appellant, Jasmine Vith, was convicted of driving under the influence
(“DUI”) general impairment,1 and driving upon sidewalks.2 Herein, she
appeals the judgment of sentence entered on March 6, 2014. We affirm.
The facts, as summarized by the trial court, are as follows:
On July 4, 2013, City of Pittsburgh Police Officer
Juan Terry was on routine patrol in the South Side
area of the city a little after 2 a.m. Officer Terry was
stopped at a red light on 12th Street at Carson when
he observed the defendant’s vehicle at the top of the
hill on 12th [S]treet attempting to complete a u-turn.
He proceeded along 12th to the intersection with
Sarah Street and observed that the defendant’s
vehicle was sideways on 12th and she was still unable
to complete the turn. In that area the street is so
narrow that when cars pass each other they have to
1
75 Pa.C.S.A. § 3802(a)(1).
2
75 Pa.C.S.A. § 3703.
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slow and proceed with caution or risk sideswiping.
The defendant could have gone to the top of the
street and turned around, but instead chose to make
the u-turn in that area. The defendant continued to
attempt the u-turn by repeatedly driving up on the
sidewalk four or five times and was not cutting the
wheels[,] which would have allowed her to complete
the turn. The entire front end of her vehicle was on
the sidewalk and pedestrians had to stop and wait.
In addition, cars traveling in both directions had to
stop and wait for the defendant to complete the turn.
After the defendant finally completed the turn and
drove past the officer, he decided to turn his vehicle
around and pull her over at 121st and 12th streets.
Officer Terry observed that the defendant’s
eyes were bloodshot and glassy, her speech slurred
and that her body and breath smelled of alcohol.
The defendant told Officer Terry she had been trying
to make a u-turn and attempted to tell him where
she was going but did not make any sense. He
stated that the defendant was [] agitated, fidgety
and moving really fast and he felt she was under the
influence. He asked the defendant to perform field
sobriety tests and demonstrated the heel to toe test
for her. The defendant took a few wobbly steps
before losing her balance and stepping off of the line.
She then put her hands to her hips and stated that
her back hurt. The officer then administered the
HGN test and the defendant exhibited all six possible
signs of impairment. At that time[,] the defendant
was taken into custody.
Trial court opinion, 10/7/14 at 2-3 (citations omitted).
Appellant filed a motion to suppress the officer’s observations of
appellant’s intoxication. Appellant claimed that the stop was illegal, as it
was unsupported by reasonable suspicion of criminal activity. The
suppression court denied appellant’s motion. Following a bench trial,
appellant was convicted of the aforementioned crimes. She was sentenced
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to participate in a four-day DUI alternative jail program to be followed by
six months’ probation. A mandatory fine of $500 was imposed, and
appellant was ordered to undergo a drug and alcohol evaluation as well as to
complete Alcohol Highway Safety School.
The sole issue presented is as follows:
I. DID THE TRIAL COURT ERR IN DENYING
[APPELLANT’S] MOTION TO SUPPRESS AS
POLICE LACKED PROBABLE CAUSE TO STOP
[APPELLANT] ON THE BASIS OF A MOMENTARY
AND MINOR TRAFFIC VIOLATION?
Appellant’s brief at 4.
The standards governing a review of an order denying suppression
motions are well settled:
We are limited to determining whether the lower
court’s factual findings are supported by the record
and whether the legal conclusions drawn therefrom
are correct. We may consider the evidence of the
witnesses offered by the Commonwealth, as verdict
winner, and only so much of the evidence presented
by [the] defense that is not contradicted when
examined in the context of the record as a whole.
We are bound by facts supported by the record and
may reverse only if the legal conclusions reached by
the court were erroneous.
Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa.Super. 2010)
(en banc) (citation omitted).
Probable cause exists when the facts and circumstances are sufficient
in themselves to warrant a person of reasonable caution in the belief that
the driver or the vehicle has violated the Vehicle Code. See
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Commonwealth v. Weaver, 76 A.3d 562, 565 (Pa.Super. 2013),
affirmed, A.3d , 2014 WL 6750608 (Pa. 2014). Probable cause is
determined by the totality of the circumstances. Id. “It is the facts and
circumstances within the personal knowledge of the police officer that
frames the determination of the existence of probable cause.” Id.(emphasis omitted).
Applying the above standard, we hold Officer Terry had probable cause
to stop appellant for a traffic violation. The officer articulated that he
observed appellant make several attempts at a U-turn on a narrow street.
As appellant repeatedly tried to make the U-turn, she drove onto the
sidewalk. Appellant impeded both foot and vehicle traffic as she
continuously drove on the sidewalk. These observations gave rise to a
suspected violation of the Motor Vehicle Code provision requiring that motor
vehicles are to be driven on roadways and not on sidewalks. 75 Pa.C.S.A.
§ 3703. Based on the foregoing, we conclude the trial court did not err
when it found Officer Terry was within his authority to initiate a traffic stop
for a violation of the Motor Vehicle Code and the ensuing evidence of
appellant’s intoxication was admissible. See Feczko, supra.Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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