Com. v. Walls, J. , 206 A.3d 537 ( 2019 )

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2019 PA Super 80COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES EDWARD WALLS :
:
Appellant : No. 1385 MDA 2018
Appeal from the Judgment of Sentence Entered July 16, 2018
In the Court of Common Pleas of Northumberland County Criminal
Division at No(s): CP-49-CR-0001584-2016
BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED MARCH 19, 2019
Appellant, James Edward Walls, appeals from the judgment of sentence
of six months’ intermediate punishment, including 30 days of house arrest
with electronic monitoring, entered in the Court of Common Pleas of
Northumberland County after he entered a plea of no contest to one count of
driving under the influence of alcohol or a controlled substance (“DUI”).1
Herein, Appellant contends the suppression court erroneously denied his
motion to suppress evidence stemming from what he argues was an unlawful
traffic stop unsupported by reasonable suspicion of DUI. We affirm.
We apply the following standard when reviewing the denial of a
suppression motion:
[An appellate court’s] 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
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1 75 Pa.C.S.A. § 3802(a)(1).
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* Former Justice specially assigned to the Superior Court.
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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, [the appellate court is]
bound by [those] 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 [ ] plenary
review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (citation
omitted). Moreover, the scope of review for a suppression issue is limited to
the record available to the suppression court. In re L.J., 79 A.3d 1073 (Pa.
2013).
At the hearing on Appellant’s motion to suppress, Pennsylvania State
Trooper Joshua Lee Herman, who possessed eight years’ experience at the
time in question, testified that Trooper Justin Rosboschil was driving in front
of him on Pennsylvania State Route 405 South when Rosboschil advised by
radio that “there was a vehicle coming towards me [Herman]. . . . [T]here
was a truck headed my way, and it appeared that it was straddling the right
fog line” of the northbound lane. N.T. 3/27/17 at 4-5.2 Trooper Herman
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2 Appellant raised a hearsay objection to Trooper Herman’s recitation of
Trooper Rosboschil’s radio advisement. N.T. at 5. The Commonwealth
responded that it offered the statement not as substantive evidence
supporting the stop but only as background information explaining why
Trooper Herman had prepared himself to observe keenly the truck’s manner
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testified he slowed down in anticipation of the truck, and when he saw it he
immediately noticed its right tires were across the right fog line. N.T. at 5,
10-11.
Unlike his fellow trooper, Trooper Herman was at a place along the
highway where he was able to turn onto the northbound lane and follow the
truck. N.T. at 5, 10, 11. Herman testified, “While following the vehicle, [I
noticed] the vehicle was weaving within its lane of travel by going left to right,
back and forth. And I also observed it to cross over again the right fog line in
front of the Milton Transportation Company.” N.T. at 5-6. He explained that
he made these observations over the course of approximately 300 yards
before executing the traffic stop. N.T. at 7.
On cross-examination, counsel for Appellant played the video recording
taken by the dashboard-mounted video camera inside Trooper Herman’s
patrol car. Counsel emphasized the obscuring effect the headlight’s glare had
on the video, but Trooper Herman insisted that such an effect was limited to
the video, as he maintained a clear view of the truck’s position on the highway
throughout the relevant time. N.T. at 10.
By Order of June 30, 2017, the suppression court denied Appellant’s
motion to suppress based on its acceptance of Trooper Herman’s testimony
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of driving. Id. As we explain below, however, we conclude that Trooper
Rosboschil’s advisement was admissible as substantive evidence of Trooper
Herman’s formation of reasonable suspicion of DUI. Therefore, we consider
such evidence in conducting our inquiry into whether reasonable suspicion
supported the traffic stop in question.
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that Appellant’s truck, within a 300-yard distance, crossed the right fog line
twice and weaved within its lane of travel. The court also relied on its review
of the video, which, it said, depicted Appellant’s truck “drifting within his lane
of travel[,] touch[ing] the fog line and then mov[ing] towards the center
line[.] If contact with the centerline occurred, it was brief and did not appear
to result in any part of the vehicle actually crossing into the opposite lane of
travel.” Order, 6/30/17, at 2.
On January 18, 2018, Appellant entered his no contest plea. The court
imposed Appellant’s sentence, described above, on July 16, 2018, and this
timely appeal followed.
Here, Appellant argues that the suppression court should have
suppressed all evidence admitted against him because it stemmed from an
unlawful stop unsupported by reasonable suspicion of DUI. We disagree.
The Motor Vehicle Code sets forth a law enforcement officer's authority
to stop a vehicle for an alleged violation as follows:
Whenever a police officer ... 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).
Traffic stops based on a reasonable suspicion: either of criminal
activity or a violation of the Motor Vehicle Code under the
authority of Section 6308(b) must serve a stated investigatory
purpose. In effect, the language of Section 6308(b)—to secure
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such other information as the officer may reasonably believe to be
necessary to enforce the provisions of this title—is conceptually
equivalent with the underlying purpose of a Terry [3] stop.
Mere reasonable suspicion will not justify a vehicle stop when the
driver's detention cannot serve an investigatory purpose relevant
to the suspected violation. In such an instance, 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.
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa.Super. 2010) (en banc)
(citations, quotation marks, and emphasis omitted, footnote added).
Thus, there is a “distinction between the investigative potential of a
vehicle stop based on a reasonable suspicion of DUI as compared to other
suspected violations of the Motor Vehicle Code.” Commonwealth v. Busser,
56 A.3d 419, 423 (Pa.Super. 2012) (citation and quotation marks omitted);
see also Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008)(noting
“[e]xtensive case law supports the conclusion [that] a vehicle stop for DUI
may be based on reasonable suspicion, as a post-stop investigation is normally
feasible.”); Commonwealth v. Sands, 887 A.2d 261, 270 (Pa.Super. 2005)
(stating that “a suspected violation for DUI is in fact a scenario where further
investigation almost invariably leads to the most incriminating type of
evidence.”).
In determining whether Trooper Herman possessed reasonable
suspicion, “we must accord due weight to the specific reasonable inferences
that [he] is entitled to draw from the facts in light of his experience.” Sands,
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3 Terry v. Ohio, 392 U.S. 1 (1968).
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887 A.2d at 272. Reasonable suspicion requires an evaluation of the totality
of the circumstances. Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa.
2011).
Reasonable suspicion is a less stringent standard than [the]
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.
Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) (citations
omitted).
Here, in explaining its ruling that reasonable suspicion of DUI supported
the stop, the suppression court pointed to testimonial and video evidence
showing Appellant’s truck drifted back and forth within its lane for
approximately 300 yards, during which time it went from the right fog line, to
the double yellow center line, and back atop the right fog line again. The court
also discussed how Trooper Herman relied on his eight years’ experience to
infer that the movements he observed created reasonable suspicion of DUI
justifying a traffic stop to permit further investigation necessary to
substantiate such suspicion. The court, therefore, denied Appellant’s
suppression motion.
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Applying the applicable standard of review and considering comparable
decisional law, we conclude that the record supports the court’s factual
findings and legal conclusion that reasonable suspicion of DUI supported
Trooper Herman’s traffic stop of Appellant.
We note, however, that the totality of information leading Trooper
Herman to perform the traffic stop in question comprised not only his own
observations of Appellant’s driving but also his receipt of Trooper Justin
Rosboschil’s observations made proximate in time and location to his own.
Specifically, Trooper Rosboschil advised that he had witnessed Appellant’s
truck “straddling the fog line” just moments before Trooper Herman then
confirmed this advisement with his own observations.
Relevant precedent confirms that a law enforcement officer may conduct
an investigative detention of a suspect based on reasonable suspicion formed
in whole or in part upon facts observed by a reliable source, such as another
officer or an identified citizen tipster.
“To have reasonable suspicion, police officers need not personally
observe the illegal or suspicious conduct, but may rely upon the
information of third parties, including tips from citizens.”
Commonwealth v. Swartz, 787 A.2d 1021, 1024 (Pa.Super.
2001) (en banc) (citation omitted). “Indeed, identified citizens
who report their observations of criminal activity to police are
assumed to be trustworthy, in the absence of special
circumstances, since a known informant places himself at risk of
prosecution for filing a false claim if the tip is untrue, whereas an
unknown informant faces no such risk.” Commonwealth v.
Barber, 889 A.2d 587, 593 (Pa.Super. 2005). Similarly,
“Pennsylvania law ... permits a vehicle stop based upon a radio
bulletin if evidence is offered at the suppression hearing to
establish reasonable suspicion.” Id. at 594.
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[F]or a stop to be valid, someone in the police
department must possess sufficient information to
give rise to reasonable suspicion. The officer with the
reasonable suspicion, usually the dispatcher, need not
convey all of this background information to the officer
who actually effectuates the stop. Thus, the police
may justify the search by presenting sufficient
evidence at the suppression hearing that someone in
the chain of command had reasonable suspicion
before the stop, even if the arresting officer did not.
Id. (citation omitted).
Commonwealth v. Anthony, 977 A.2d 1182, 1187 (Pa.Super. 2009)
(holding Commonwealth established existence of reasonable suspicion of DUI
solely through testimony of arresting officer who executed traffic stop
exclusively upon highly detailed information supplied in dispatch relaying
observations of a named-citizen informant maintaining contact with erratic
driver).
Therefore, we examine whether Trooper Herman’s possession of
Trooper Rosboschil’s advisement coupled with his own observations supplied
reasonable suspicion of DUI permitting the investigative detention that
followed. As discussed, Trooper Herman testified that his fellow trooper
warned him of an oncoming truck straddling the right fog line. Trooper
Herman slowed to position himself to make a U-turn, which he completed after
witnessing Appellant’s truck riding along the right fog line. After turning to
follow the truck, Trooper Herman witnessed it drift within its lane, from fog
line to the double yellow center line, and back to the fog line, all within 300
yards before the trooper activated his overhead lights to conduct a traffic stop.
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In Sands, this Court held that reasonable suspicion of DUI was formed
when a qualified officer observed a vehicle’s “unsteady weaving progress” as
it drifted across the fog line three times on a portion of road free from
obstructions. Id. at 272. Sands, therefore, supports the conclusion that
information available to Trooper Herman at the critical time was, likewise,
sufficient to establish reasonable suspicion of DUI. Consequently, Trooper
Herman’s traffic stop was not improper, and we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/19/2019
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