Com. v. Yoder, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TAMATHA MAE YODER :
:
Appellant : No. 611 WDA 2017
Appeal from the Judgment of Sentence March 24, 2017
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000206-2016
BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED APRIL 4, 2018
Tamatha Mae Yoder appeals from the judgment of sentence imposed
March 24, 2017, in the Greene County Court of Common Pleas. The trial court
sentenced Yoder to a term of 36 months’ intermediate punishment after a jury
convicted her of two counts of driving under the influence of alcohol (“DUI”),1
and the trial court convicted her of the summary offense of careless driving. 2
On appeal, Yoder argues: (1) the trial court erred in denying her suppression
motion; and (2) the evidence was insufficient to support her conviction of
careless driving. For the reasons below, we affirm.
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1 See 75 Pa.C.S. §§ 3802(a)(1) and (c).
2 See 75 Pa.C.S. § 3714(a).
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The facts, developed from Yoder’s suppression hearing and jury trial,
are as follows. Cumberland Township Police Officer Zachary Kodric3 testified
that during the early morning hours of April 2, 2016, he was on routine patrol
in the Crucible Road area. See N.T., 9/19/2016, at 4. At approximately 3:30
a.m., he “got behind” a maroon Jeep as he “headed back to the station.” Id.
As he travelled behind the vehicle for approximately three and one-half to four
miles, Officer Kodric observed “the Jeep traversing off the roadway a couple
times, [] three to four times at least[, and] fail[ing] to maintain a single lane
of travel.”4 Id. The officer explained that while there was no fog line, the
berm surface, which consisted of “dirt, gravel, grass[,]” was different than the
asphalt road surface, and he observed “debris flying off the road” when the
Jeep navigated onto the berm. Id. at 12-13. At one point, the vehicle nearly
missed hitting a guardrail. See N.T., 1/13/2017, at 17. Officer Kodric testified
he then initiated a traffic stop “[f]or the vehicle traversing off the roadway,
failing to maintain a single lane of travel.” N.T., 9/19/2016, at 5. When the
officer approached the vehicle, he encountered Yoder in the driver’s seat and
a man, later identified as her husband, in the passenger’s seat. The officer
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3 We note the officer’s last name is incorrectly transcribed in the jury trial
transcript as “Codrick.” See N.T., 1/13/2017, at 15. See also N.T.,
9/19/2016, at 4 (police officer spells his last name as “Kodric” before his
testimony at the suppression hearing).
4Officer’s Kodric’s dashboard video of the incident was played both during the
suppression hearing and subsequent jury trial. See N.T., 9/19/2016, at 6;
N.T., 1/13/2017, at 20-21.
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noticed Yoder’s speech was slurred, her eyes were glassy, and there was an
odor of alcohol “emanating from the driver’s side of the vehicle.” N.T.,
1/13/2017, at 18. He then directed Yoder to complete three field sobriety
tests, which she “performed badly.” Id. at 20. At that point, Officer Kodric
arrested Yoder for suspicion of DUI. A breathalyzer test performed at the
police station registered Yoder’s blood alcohol content at 0.167. See id. at
55.
Yoder was subsequently charged with two counts of DUI, and one count
each of careless driving and driving on roadways laned for traffic (driving
within single lane).5 Yoder filed a motion to suppress the evidence obtained
during the vehicle stop, which the trial court denied by order entered
September 27, 2016. The case proceeded to a jury trial. On January 13,
2017, a jury convicted Yoder of two counts of DUI. The court then found
Yoder guilty of the summary offense of careless driving, and not guilty of
driving on roadways laned for traffic. On March 24, 2017, Yoder was
sentenced to a term of 36 months’ intermediate punishment and a $1,500.00
fine for one count of DUI, and a $25.00 fine for careless driving. 6 Yoder filed
a post-sentence motion on April 3, 2017, asserting she was “entitled to
suppression [of the evidence] and a new trial[.]” Motion for Reconsideration,
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5 See 75 Pa.C.S. § 3309(1).
6 The second count of DUI merged for sentencing purposes.
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4/3/2017, at ¶ 9. The trial court denied the motion on April 11, 2017, and
this timely appeal followed.7
In her first issue on appeal, Yoder contends the trial court erred in
denying her pretrial suppression motion. Specifically, she argues the
Commonwealth failed to establish Officer Kodric had probable cause to initiate
the traffic stop. See Yoder’s Brief at 10.
When considering a trial court’s suppression ruling, we must determine
“whether the record supports the trial court’s findings of fact and whether the
trial court erred in its legal conclusions.” Commonwealth v. Enick, 70 A.3d
843, 845 (Pa. Super. 2013) (citation omitted), appeal denied, 85 A.3d 482(Pa. 2014).
A police officer’s statutory authority to stop a motor vehicle is codified
in Section 6308 of the Motor Vehicle Code:
(b) 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) (emphasis supplied).
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7 On April 18, 2017, the trial court ordered Yoder to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Yoder
complied with the court’s directive, and filed a concise statement on April 24,
2017.
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In interpreting this subsection, the courts of this Commonwealth have
concluded that a vehicle stop based solely on reasonable suspicion of a motor
vehicle violation “must serve a stated investigatory purpose … [since] … the
language of Section 6308(b) … is conceptually equivalent with the underlying
purpose of a Terry stop.” Commonwealth v. Feczko, 10 A.3d 1285, 1291
(Pa. Super. 2010) (en banc), appeal denied, 25 A.3d 257 (Pa. 2011).
However, “[m]ere reasonable suspicion will not justify a vehicle stop when the
driver’s detention cannot serve an investigatory purpose relevant to the
suspected violation.” Id. When no further investigation is necessary, an
officer must “articulate specific facts possessed by him, at the time of the
questioned stop, which would provide probable cause to believe that the
vehicle or the driver was in violation of some provision of the Code.” Id.(emphasis, citation, and footnote omitted).
In the present case, Officer Kodric testified at the suppression hearing
that he stopped Yoder’s vehicle for “traversing off the roadway, failing to
maintain a single lane of travel.” N.T., 9/19/2016, at 5. Section 3309 of the
Pennsylvania Motor Vehicle Code provides, in pertinent part:
(1) Driving within single lane.--A vehicle shall be driven as nearly
as practicable entirely within a single lane and shall not be moved
from the lane until the driver has first ascertained that the
movement can be made with safety.
75 Pa.C.S. § 3309(1). In order to initiate a vehicle stop based upon a violation
of Section 3309(1), an officer must possess probable cause that the violation
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occurred, since no further investigation is necessary. See Feczko, supra, 10
A.3d at 1291. When determining whether probable cause exists,
we must consider “whether the facts and circumstances which are
within the knowledge of the officer at the time of the arrest, and
of which he has reasonably trustworthy information, are sufficient
to warrant a man of reasonable caution in the belief that the
suspect has committed or is committing a crime.”
Commonwealth v. Ibrahim, 127 A.3d 819, 824 (Pa. Super. 2015)
(quotation omitted), appeal denied, 138 A.3d 3 (Pa. 2016). However, we note
“[p]robable cause does not require certainty, but rather exists when
criminality is one reasonable inference, not necessarily even the most likely
inference.” Commonwealth v. Cook, 865 A.2d 869, 875 (Pa. Super. 2004)
(quotation omitted), appeal denied, 880 A.2d 1236 (Pa. 2005).
Here, Yoder argues Officer Kodric did not possess the requisite probable
cause to stop her vehicle for a violation of Section 3309(1). See Yoder’s Brief
at 10. She emphasizes that because the statute permits a driver to leave her
lane of travel if the movement can be made safely, in order for a violation to
occur, “a driver must leave [her] lane of travel and there must be something
objectively unsafe about it.” Id. Yoder insists that “[t]here was nothing
unsafe about [her] … leaving her lane of travel to drive momentarily on the
shoulder,” and, in fact, the court found her not guilty of violating Section
3309(1). Id. Relying on Commonwealth v. Gleason, 785 A.2d 983 (Pa.
2001), Yoder contends there was no evidence her driving created a “safety
hazard,” since there were no other cars on the road, and she “never came
close to losing control of the vehicle[.]” Yoder’s Brief at 11. Furthermore,
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although the court found she drove near a guardrail, she maintains “the
guardrail is very, very close to the road in [that] location[,]” and, in any event,
she “maintained safety while doing so.” Id. Accordingly, Yoder argues the
trial court erred in denying her suppression motion.
In addition to the testimony of Officer Kodric, the trial court viewed a
video of the incident that was recorded from the dashboard of the officer’s
police car. See N.T., 9/19/2016, at 6. After reviewing the evidence, the court
made the following factual findings:
That Patrolman Kodric while on routine patrol in Cumberland
Township [] observed a maroon Jeep traveling on Crucible Road.
This first observation to be at approximately 3:28 a.m. It should
be noted that Crucible Road is an asphalt paved roadway
separated by double yellow lines. The Court also now having the
benefit of observing a video of the driving conduct of [Yoder], the
Court determines as factual that there was no painted fog line to
delineate the right side of the road. However, the roadway would
be wide enough to continue to travel on the paved section of the
highway without need to travel on the berm.
The Court will also determine as factual that there was a
distinction between the asphalt and paved roadway and that of
the soft berm comprised of gravel and pieces of asphalt and dirt.
The Court believes that the Officer followed [Yoder] from
approximately 3:28 a.m. to 3:31 a.m. and that during the initial
minutes of the observation the Court believes that the Officer was
following at approximately 4 to 5 car lengths. The Court is swayed
by the testimony of the Officer and upon viewing the video, that
at approximately 3:28 a.m. the maroon Jeep veered off the
roadway such that [Yoder] left the paved portion of the highway
and entered onto the berm.
The Court will also note that there was no oncoming traffic
during the entire period of observation of driving. The Court will
also note that at approximately 3:29 a.m. the video depicts and
the Officer would have been an eyewitness to [Yoder] again
leaving the travel portion of the roadway; that is her vehicle
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moved off the asphalt portion and again onto the berm. This
driving conduct also occurred at approximately 3:30 a.m.
The Court will note that at approximately 3:31 a.m. [Yoder]
traveled very close to a guardrail and needed to make a braking
maneuver in order to maintain safety. The Court will acknowledge
that, at this point, the Police Officer was following at
approximately 2 – 3 car lengths. This being apparent from the
video at approximately 3:31 a.m. the vehicle again left the lane
of travel, traveling off the paved portion of the roadway.
Trial Court Opinion, 9/27/2016, at unnumbered 2-4. Based on these factual
findings, the trial court concluded:
The driving conduct of [Yoder] was more than sufficient to
meet the standard of probable cause. The actions of the driver in
leaving the travel portion or paved portion of the roadway on at
least 3 occasions was more than mere pretext and again gives rise
to probable cause such that the traffic stop should be initiated.
Id. at unnumbered 4.
Our review of the record, including the dashboard video footage of the
incident, reveals ample support for the trial court’s factual findings and legal
conclusions. Here, the video footage shows Officer Kodric following Yoder’s
vehicle for four minutes, during which time Yoder traveled on the berm of the
road four times, and, at one point, nearly hit a guardrail. Moreover, Officer
Kodric testified that there was no adverse weather, or anything “impeding the
roadway,” which would have necessitated Yoder leaving her lane of travel.
N.T., 9/19/2016, at 7. He also explained that although there was no fog line
painted on the roadway, the surface of the roadway and berm were different,
so that, it was evident when Kodric traveled on the berm because he
“observed debris flying off the road.” Id. at 13.
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We find Officer Kodric’s testimony, which is supported by the video
footage, sufficient to establish probable cause to stop Yoder’s vehicle for a
violation of Section 3309(1). Indeed, Yoder’s travel on the berm of the road
four times in four minutes does not support a claim that she stayed in her lane
“as nearly as practicable.” 75 Pa.C.S. § 3309(1). While Yoder emphasizes
she is permitted to move outside her lane “in the event it can be done
safely[,]”8 she fails to acknowledge how close she came to hitting a guardrail.
Furthermore, absent any reason to travel on the berm of the road multiple
times during the four-minute period, the court was well within its discretion in
determining the officer had probable cause to stop Yoder for a violation of
Section 3309.9
Moreover, we find the facts in Gleason, supra, a decision upon which
Yoder relies, distinguishable. In that case, a police officer stopped the
defendant’s vehicle after he “observed it cross the solid fog line on two or
three occasions over a distance of approximately one quarter mile.” Gleason,
supra, 785 A.2d at 985. The officer noted that during the time he followed
the vehicle, “there were no other vehicles on the roadway.” Id. After a
subsequent investigation revealed the defendant might be intoxicated, and he
refused to submit to blood alcohol testing, the officer arrested defendant for
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8 Yoder’s Brief at 10.
9 It is of no moment that the trial court ultimately found Yoder not guilty of a
violation of Section 3309(1), as the standard of probable cause is a lesser
standard of proof than beyond a reasonable doubt.
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DUI and related charges. See id. The trial court originally granted the
defendant’s motion to suppress, concluding the officer “was not justified in
stopping [the defendant] simply because he observed [the defendant] swerve
onto the berm of the roadway two or three times.” Id. On appeal, a panel of
this Court reversed and found the defendant’s “repeated inability to remain
on the highway with an intersection approaching reasonably prompted [the
officer] to check on the operator for his erratic driving[.]” Id. at 986 (internal
punctuation and citation omitted).
The Pennsylvania Supreme Court, however, reversed the decision of this
Court, opining:
[W]e conclude that the Superior Court erred in holding that [the
officer] was justified in stopping Appellant’s vehicle under the
facts of this case. As noted previously, the [Superior Court]
conceded that “the lack of any evidence at the suppression
hearing that Appellant’s driving created a safety hazard leads us
to agree with the trial court that there was insufficient evidence
to support a Section 3309(1) violation.” Slip op. at 4. In finding
the stop of Appellant to be justified nevertheless, the [Superior
Court] lowered the standard necessary for a proper vehicle stop
as articulated by this Court in [Commonwealth v.] Whitmyer,
668 A.2d 1113 (Pa. 1995)]:
If the alleged basis of a vehicular stop is to permit a
determination whether there has been compliance with the
Motor Vehicle Code of this Commonwealth, it is encumbent
[sic] upon the officer to articulate specific facts possessed
by him, at the time of the questioned stop, which would
provide probable cause to believe that the vehicle or the
driver was in violation of some provision of the Code.
Whitmyer, 668 A.2d at 1116, citing Swanger, 307 A.2d at 879
(emphasis added).
Gleason, supra, 785 A.2d at 989 (emphasis supplied).
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Conversely, in the present case, Yoder’s driving on the berm of the
roadway “created a safety hazard” when she nearly hit a guardrail. Id. The
law does not require a near miss with another vehicle or resulting damage to
justify a stop for a violation of Section 3309. Under the facts of this case, the
trial court properly determined that Yoder’s repeated failure to stay on the
roadway, culminating with her her close call with a guardrail, was sufficient to
“warrant a man of reasonable caution in the belief” that Yoder was violating
the Motor Vehicle Code. Ibrahim, supra, 127 A.3d at 824. Accordingly,
Yoder is entitled to no relief.
In her second claim, Yoder contends the evidence was insufficient to
sustain her conviction of careless driving.
When considering a challenge to the sufficiency of the evidence,
[w]e view that evidence in a light most favorable to the
Commonwealth, drawing all reasonable inferences in favor of the
Commonwealth. The evidence “need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented.” Only where “the
evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined
circumstances[,]” is a defendant entitled to relief. We do not “re-
weigh the evidence and substitute our judgment for that of the
fact-finder.” As the question of the sufficiency of the evidence is
one of law, we consider the evidence de novo.
Commonwealth v. Ford, 141 A.3d 547, 552–553 (Pa. Super. 2016) (internal
citations omitted), appeal denied, 164 A.3d 483 (Pa. 2016).
Pursuant to Section 3714 of the Motor Vehicle Code, a person may be
convicted of careless driving if she “drives a vehicle in careless disregard for
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the safety of persons or property[.]” 75 Pa.C.S. § 3714(a). “The mens
rea requirement applicable to [Section] 3714, careless disregard, implies less
than willful or wanton conduct but more than ordinary negligence or the mere
absence of care under the circumstances.” Commonwealth v. Gezovich, 7
A.3d 300, 301 (Pa. Super. 2010) (internal punctuation and citation omitted).
Yoder contends the evidence, which consisted of her car “drifting four
times out of its lane over the course of four miles under good weather
conditions with no other traffic present[,]” was insufficient to “warrant a
finding that [she] operated her vehicle with careless disregard for the safety
or property of others.” Yoder’s Brief at 13. Moreover, she emphasizes her
actions did not “create any significant risk of harm or injury to anyone else”
and her driving under the influence, alone, does not support a conviction of
careless driving. Id. at 14. Accordingly, she argues “[w]ithout a showing of
some careless disregard and actual safety hazard observed in her driving, the
record cannot support a conviction for Careless Driving.” Id.
Although the trial court did not specifically address this claim in its
Pa.R.A.P. 1925(a) opinion, our review of the record reveals sufficient evidence
to support Yoder’s careless driving conviction. Although Yoder focuses on the
fact that, because there were no other cars or pedestrians on the roadway,
her driving did not create a risk of injury to any person, she fails to
acknowledge she may be convicted of careless driving if she “drives a vehicle
in careless disregard for the safety of persons or property[.]” 75 Pa.C.S. §
3714(a). There is no requirement that an injury or property damage actually
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occur. Here, Yoder’s near miss of the guardrail, after traveling on the berm
repeatedly over the course of several miles, was sufficient to support her
conviction of careless driving. Accordingly, no relief is warranted on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2018
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