Com. v. Wade-Proctor, S. ( 2022 )

J-A14014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN DERRICK WADE-PROCTOR :
:
Appellant : No. 1011 MDA 2021
Appeal from the Judgment of Sentence Entered June 25, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005594-2020
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 31, 2022
Appellant, Shawn Derrick Wade-Proctor, appeals from the judgment of
sentence of, inter alia, 3 days’ to 6 months’ incarceration, imposed after he
was convicted of driving under the influence of alcohol or controlled substance
– controlled substances, 75 Pa.C.S. § 3802(d)(1)(i); driving under the
influence of alcohol or controlled substance – controlled substances, 75
Pa.C.S. § 3802(d)(1)(iii); driving on roadways laned for traffic – driving within
a single lane, 75 Pa.C.S. § 3309(1); violating the duty of a driver in emergency
response areas, 75 Pa.C.S. § 3327(a)(1); and operating a vehicle without
official certificate of inspection, 75 Pa.C.S. § 4703(a)(1). On appeal, Appellant
solely challenges the trial court’s denial of his motion to suppress the traffic
stop due to a lack of probable cause. After review, we affirm.
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* Former Justice specially assigned to the Superior Court.
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Appellant proceeded to a non-jury trial on June 25, 2021. Prior to the
trial commencing, the court held a hearing on Appellant’s pending suppression
motion, in which Appellant argued that the patrolling officer did not have
probable cause to stop his vehicle on the day in question. At the suppression
hearing, the Commonwealth called Pennsylvania State Police Trooper Shane
Dressler (“Trooper Dressler”) to testify. N.T., 6/25/21, at 7. Trooper Dressler
testified that, on September 6, 2020, he was on patrol duty in York County,
wearing his uniform and driving a marked car. Id. at 8-9. Trooper Dressler
recalled that, at some point, he was called to back up another trooper at a
traffic stop on Route 83, around mile marker 29-30 southbound. Id. at 9.
Trooper Dressler described that he “was parked behind another trooper … who
was typing a citation for the person he had pulled over, and I was monitoring
my side mirror, looking for drivers who would not move over to the left lane.”
Id. As he was doing so, Trooper Dressler recounted that he,
observed a vehicle, it was a sedan. I don’t remember what color.
While I was looking in my side mirror, I observed the sedan
swerve over behind me, swerve over the white line. … [T]o me[,]
it appeared the vehicle was about to strike my vehicle. The vehicle
then s[w]erved back over[,] back into his lane[,] in the right
lane[,] and passed me. The vehicle also failed to move over to
the left lane as he was passing me with my emergency lights in
effect.
Id.
Trooper Dressler stated that he then began to follow the vehicle. Id. at
10. As he observed the vehicle, Trooper Dressler saw that the driver
continued to weave within his lane. Id. Trooper Dressler said he subsequently
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got behind the vehicle and initiated a traffic stop. Id. Trooper Dressler
identified Appellant as the operator of the at-issue vehicle. Id. at 16.
During Trooper Dressler’s testimony, the Commonwealth introduced and
played the “dash cam” video from that day. See id. at 10-15; see also
Commonwealth’s Exhibit 1 (“Dash Cam Video”). As the Commonwealth
played the dash cam video, Trooper Dressler described the events that
unfolded as follows:
[The court]: Officer, describe what you’re seeing … on the video
or give us context here.
[Trooper Dressler]: Okay. So right now[,] I am looking in my side
mirror for vehicles that are not passing in the left lane. I’m looking
for vehicles that are passing in the right lane. It’s an officer safety
issue, and that’s the law.
***
[The Commonwealth]: Whose vehicle are we looking in front of?
[Trooper Dressler]: We’re looking at – Trooper Eric Dressler was
operating that vehicle, I believe he’s writing a citation right now.
So I’m looking in my side mirror for vehicles who are failing to
move over to the left lane, [and] at this time I think I observe the
sedan begin to swerve towards my vehicle, cross over the white
line, the white dash line that you can see right there, and, yep,
you just saw it pass right there. It was very close to my vehicle
and the vehicle in front of me.
***
So right here, that vehicle right there, passed and … I would say
[it was] within a foot or two of striking my vehicle and the vehicle
in front of me. That’s what caught my attention. I pull out and
begin to follow the vehicle, trying to catch up. At this point[,] I’m
trying to catch up. So right there[,] you can see the vehicle again.
… [I]ts right tires look[] like [they are] touching the white line.
It’s still weaving within its lane, continuing right there. I go into
the left lane to catch the vehicle, get behind it here momentarily,
I get behind the vehicle. He fails to maintain his lane. I turn my
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emergency lights and sirens on, … and the vehicle has a slow
response to my emergency equipment, continues to travel in the
shoulder, keeps going for a good bit and finally comes to a stop.
[The Commonwealth]: Pausing the video at 4 minutes and 12
seconds. … Trooper Dressler, going back to the traffic stop for a
moment, were your emergency lights on when you were parked
behind Trooper Eric Dressler?
[Trooper Dressler]: Yes.
[The Commonwealth]: And can you describe that section of
[Route] 83, specifically leading up to the stop as cars are driving
towards you?
[Trooper Dressler]: This is a straightaway. This is a straightaway
from about mile marker 32 all the way until about mile marker 26
southbound. You can see clearly for miles. You can see if a state
trooper has his emergency lights on, and there’s, in my opinion,
there’s plenty of time to get over into the left lane from where I
was parked.
N.T. at 13-16. At the relevant time, Trooper Dressler additionally recalled that
“it was a clear day, it was daylight[,] and the road was dry.” Id. at 8.
On cross-examination, Trooper Dressler acknowledged that Appellant’s
swerve, which he alleged nearly hit his vehicle, was not on the dash cam
video. Id. at 18. Trooper Dressler also recognized that, at the time Appellant
passed his vehicle, there were other vehicles in the left-hand lane, and two
other vehicles — one in front and one behind Appellant — in the right-hand
lane. Id. at 18-19. Trooper Dressler agreed that, if Appellant had slammed
on his brakes, it would been unsafe for the other drivers on the road. Id. at
20. Nevertheless, Trooper Dressler explained that he pulled Appellant over
for “failing to maintain the lane, which is what I witnessed in my side-view
mirror, and I believe [Section] 3327, which is the move over law.” Id. at 22.
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On re-direct examination, when asked why he pulled Appellant over
instead of the other two vehicles in the right-hand lane, Trooper Dressler
answered:
Because [Appellant’s] driving was unsafe compared to the other
two. I witnessed in my side mirror, like I said before, [Appellant’s
vehicle] swerve over with [its] right tires passing the white line
that you see right there, and almost strike my vehicle, and you
saw it clear as day in the video that [Appellant] was much closer
than the other two vehicles. That is why that vehicle … captured
my attention, and that’s why I pulled that vehicle over.
Id. Further, Trooper Dressler agreed that Appellant could have moved into
the left-hand lane prior to being adjacent with Trooper Dressler’s patrol
vehicle, given that there was a straightaway leading up to the spot where the
patrol vehicles were pulled over. See id. at 23-24.
Following argument from the parties, the trial court denied Appellant’s
motion to suppress. In doing so, the trial court noted that — even if it credited
Appellant’s argument that he could not have safely moved into the left-hand
lane — Trooper Dressler testified that the “primary reason” he pulled Appellant
over was because Appellant “was not driving in a single lane” and had
“swerved off the lane and almost hit [Trooper Dressler’s] car.” Id. at 26-27.
Thus, because Trooper Dressler observed a traffic violation under Section
3309(1), which pertains to driving within a single lane, the trial court
determined that Trooper Dressler had probable cause to pull Appellant over.
See id.
The non-jury trial then immediately ensued, and Appellant was
convicted of the above-stated offenses, which included, inter alia, driving
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under the influence of alcohol or controlled substance, driving on roadways
laned for traffic – driving within a single lane, and violating the duty of a driver
in emergency response areas. See id. at 48 (the trial court’s finding, among
other things, that Appellant was “operating a motor vehicle on Route 83 in
Northern York County on September 6th, 2020, and that his blood, with his
consent, was drawn shortly thereafter, and tested positive for the scheduled
one controlled substance of marijuana, that result being above the reporting
limit”); id. at 49 (accepting Trooper Dressler’s testimony that “he observed
[Appellant] in his rear-view mirror swerving over and crossing the fog line on
the right-hand lane of Route 83”); id. at 50 (crediting Trooper Dressler’s
testimony that, because motorists have an unobstructed view on the relevant
stretch of Route 83, Appellant “would have had plenty of time upon observing
the flashing lights indicating the emergency response area to have moved into
the left-hand lane safely,” but failed to do so).
The trial court subsequently sentenced Appellant to, among other
things, 3 days’ to 6 months’ incarceration. Appellant timely filed a notice of
appeal. The trial court then directed Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and, after
receiving an extension to do so, Appellant timely complied. Thereafter, the
trial court issued its Rule 1925(a) opinion. In its Rule 1925(a) opinion, the
trial court stated that it “determined that Trooper Dressler observed
[Appellant] commit a violation of [Section] 3309(1)[, i.e., driving on roadways
laned for traffic – driving within a single lane,] and [Section] 3327[, i.e.,
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violating the duty of a driver in emergency response areas]…, and therefore
had probable cause to stop [Appellant’s] vehicle.” Trial Court Opinion (“TCO”),
9/29/21, at 4 (emphasis added).1
On appeal, Appellant raises a single issue for our review:
Whether the trial court erred in denying [Appellant’s] [m]otion to
[s]uppress the traffic stop on the basis of a lack of probable cause
to stop the vehicle under either 75 Pa.C.S. § 3309 or 75 Pa.C.S.
§ 3327?
Appellant’s Brief at 5.
At the outset, when evaluating a trial court’s decision to deny a motion
to suppress, we acknowledge that:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where
… the appeal of the determination of the suppression court turns
on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (cleaned up).
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1As Appellant points out, at the suppression hearing, the trial court had not
denied his motion to suppress based on a violation of Section 3327. See,
e.g., Appellant’s Brief at 20; Appellant’s Reply Brief at 1.
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Because the trial court stated at the suppression hearing that it was
denying Appellant’s motion to suppress based on Trooper Dressler’s
observation that Appellant violated Section 3309(1) (driving on roadways
laned for traffic – driving within a single lane), we address that determination
first. See footnote 1, supra. Section 3309(1) provides that:
Whenever any roadway has been divided into two or more clearly
marked lanes for traffic the following rules in addition to all others
not inconsistent therewith shall apply:
(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).
Appellant argues that Trooper Dressler “did not have probable cause to
stop [Appellant] for violating [Section] 3309 based on [Appellant’s] brief and
singular crossing of the fog line. The trial court erred when it did not suppress
the traffic stop based on the lack of probable cause to initiate the stop.”
Appellant’s Brief at 12.
It is well-established that, “[w]here a vehicle stop has no investigatory
purpose, the police officer must have probable cause to support it.”
Commonwealth v. Enick, 70 A.3d 843, 846 (Pa. Super. 2013) (citing
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en
banc)) (footnote omitted). Here, Trooper Dressler said he stopped Appellant
for “failing to maintain the lane [pursuant to Section 3309(1)], which is what
I witnessed in my side-view mirror, and I believe [Section] 3327, which is the
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move over law.” N.T. at 22. Trooper Dressler did not represent that he pulled
over Appellant because he suspected Appellant was driving under the
influence and, thus, the stop was not for an investigatory purpose. As such,
the stop is legal only if Trooper Dressler possessed probable cause.2
To establish probable cause, “[t]he officer must be able 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 some
violation of some provision of the Vehicle Code.” Enick, 70 A.3d at 846 n.3
(citations omitted). “Probable cause does not require certainty, but rather
exists when criminality is one reasonable inference, not necessarily even the
most likely inference.” Id. (citations omitted).
Appellant asserts that “[t]he record shows that [Appellant] at most
crossed the fog/berm line once prior to being pulled over by Trooper Dressler.”
Appellant’s Brief at 12. He stresses that “[t]his Court has held that erratic
driving alone does not provide probable cause to execute a traffic stop.” Id.
at 14. In support, he argues:
In [Commonwealth v.] Battaglia, [802 A.2d 652 (Pa. Super.
2002),] the defendant was weaving within his lane of travel when
the officer initially noticed his driving. Id. at 654. At first[,] the
defendant was merely weaving in his lane and was not seen to be
crossing either the center line or the berm line. Id. Upon noticing
this[,] the officer began following the defendant. Id. While
following the vehicle[,] the officer noticed the defendant was
driving five to ten miles below the speed limit of 35 miles per hour.
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2 The Commonwealth agrees that Trooper Dressler needed probable cause to
stop Appellant for the traffic code violations he observed. See
Commonwealth’s Brief at 10-12.
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The [o]fficer in Battaglia also saw the defendant make a wide
right turn onto an on[-]ramp toward a highway. Id.The trial court in Battaglia granted suppression based on the lack
of probable cause. Id. In Battaglia, this Court upheld the
suppression based on the Pennsylvania Supreme Court’s ruling in
Commonwealth v. Gleason, … 785 A.2d 983 ([Pa.] 2001). Id.
at 656. In Gleason, the [C]ourt held that crossing the berm line
two or three times, without more, could not establish probable
cause to justify a traffic stop based on the driving[-]within[-
]lanes[-]marked[-]for[-]travel statute. [Gleason, 785 A.2d at
989 (Pa. 2001)].[3]
This Court applied the holding of Gleason in Commonwealth v.
Garcia, 859 A.2d 820 (Pa. Super. 2004)[,] to a situation in which
a defendant crossed the fog line twice. This Court held:
But a close reading of the Gleason rationale, combined with
careful attention to the facts of that case, lead us to
conclude that where a vehicle is driven outside the lane of
traffic for just a momentary period of time and in a minor
manner, a traffic stop is unwarranted. Thus, … Gleason’s
crossing of the berm line on two occasions for a second or
two were inadequate to support a traffic stop, while [the
defendant’s] repeated weaving within his lane, coupled with
his driving over the center double lines and the berm line
four or five times, provided probable cause to support a
lawful traffic stop[ in Commonwealth v. Linblom, 854
A.2d 604 (Pa. Super. 2004)].
Garcia, 859 A.2d at 823.
Appellant’s Brief at 14-15.
In addition, Appellant disputes the trial court’s factual finding that
Appellant swerved off the lane and almost hit Trooper Dressler’s vehicle. See
id. at 15. Appellant contends that the dash cam video “makes it clear that
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3 We note that there were no other vehicles on the roadway in Gleason. See
Gleason, 785 A.2d at 985. Thus, in finding that the stop was not justified,
the Gleason Court recognized the lack of any evidence at the suppression
hearing that the defendant’s driving created a safety hazard to support a
Section 3309(1) violation. See id. at 989.
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[Appellant] was traveling on the correct side of the fog line at the time he
passed the traffic stop.” Id. Appellant also points out that Trooper Dressler
testified that “he believed [Appellant] stayed one or two feet away from his
vehicle while crossing the fog line and passing the initial traffic stop.” Id. at
16 (citing N.T. at 14). Appellant says that, pursuant to Gleason, “a
defendant’s passing of the line must create a safety hazard to violate the
statute.” Id. However, he says that, “[i]n the case at hand[,] there was no
apparent safety hazard created by [Appellant’s] crossing of the fog line when
[Appellant] corrected his vehicle prior to passing the initial traffic stop.” Id.
Thus, Appellant maintains that — to the extent the trial court credited Trooper
Dressler’s assertion that Appellant’s momentary crossing of the fog line was
too close to his vehicle, creating a safety hazard — such a finding is not
supported by the record. See id. at 16-17.
We reject Appellant’s argument. At the suppression hearing, Trooper
Dressler testified that, “[w]hile I was looking in my side mirror, I observed
[Appellant’s] sedan swerve over behind me, swerve over the white line. …
[T]o me[,] it appeared the vehicle was about to strike my vehicle. The vehicle
then s[w]erved back over[,] back into his lane[,] in the right lane[,] and
passed me.” N.T. at 9; see also id. at 14 (“I’m looking in my side mirror for
vehicles who are failing to move over to the left lane, at this time I think I
observe the sedan begin to swerve towards my vehicle, cross over the white
line, the white dash line that you can see right there, and, yep, you just saw
it pass right there.”); id. at 22 (“I witnessed in my side mirror, like I said
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before, [Appellant’s vehicle] swerve over with [its] right tires passing the
white line that you see right there, and almost strike my vehicle, and you saw
it clear as day in the video that [Appellant] was much closer than the other
two vehicles.”). Trooper Dressler also described that Appellant’s vehicle “was
very close to my vehicle and the vehicle in front of me[,]” and that, when
Appellant’s vehicle passed by, “[it was] within a foot or two of striking my
vehicle and the vehicle in front of me.” Id. at 14. While Appellant emphasizes
that he was on the correct side of the fog line when he passed Trooper Dressler
and stayed one or two feet away from striking Trooper Dressler’s vehicle, such
arguments do not undermine Trooper Dressler’s testimony that he saw, from
his side mirror, Appellant swerve out of the lane behind him and nearly hit his
parked patrol vehicle. The fact that a collision, fortunately, did not occur does
not mean that Appellant’s failure to maintain his lane did not create a safety
hazard.4
Given that Appellant’s failure to maintain his lane created a safety
hazard, we distinguish his case from that of the defendants in Gleason,
Garcia, and Battaglia. As the trial court aptly discerned:
The Superior Court in Garcia held that “[w]here a vehicle is driven
outside the lane of traffic for just a momentary period of time and
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4 Moreover, upon our own review of the dash cam video, we agree with the
trial court that “[t]he fact that the swerving of [Appellant’s] vehicle where he
nearly hit the [t]rooper’s vehicle could not be seen on the dash cam is of no
moment.” TCO at 4. As the trial court observed, “[t]he [t]rooper indicated
that he saw that from his side[-]view mirror and, as a result, that would not
have been captured on the dash cam, which only captured the front view.”
Id.
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in a minor manner, a traffic stop is unwarranted.” … Garcia,
859 A.2d [at] 823 … (emphasis added). In Garcia, the defendant
drove over the fog line twice within the space of two blocks in
response to another vehicle coming toward him in the opposite
lane. However, the instant case is distinguishable from Garcia in
that not only did [Appellant] cross the fog line, when he did so, he
narrowly missed hitting the [t]rooper’s vehicle. This created a risk
of harm not only to himself, but to the [t]roopers parked along
the side of the road as well. Cf. Commonwealth v. Chernosky,
… 874 A.2d 123, 128 (Pa. Super. 2005), appeal denied, … 902
A.2d 1238 (Pa. 2006) (police had probable cause where [the]
defendant crossed both [the] center and fog lines more than once
and narrowly missed hitting telephone pole).
TCO at 4-5. We agree with the trial court’s analysis. Accordingly, we conclude
that the trial court properly denied Appellant’s motion to suppress and,
therefore, we affirm Appellant’s judgment of sentence.5
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2022
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5Given our disposition, we need not address whether the trial court erred in
denying Appellant’s motion to suppress the traffic stop due to a lack of
probable cause to stop his vehicle under Section 3327.
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