Com. v. Strawn, S., Jr. ( 2020 )

J-S57043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEPHEN STRAWN, JR., :
:
Appellant : No. 702 MDA 2019
Appeal from the Judgment of Sentence Entered November 27, 2018
in the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001996-2017
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 13, 2020
Stephen Strawn, Jr. (“Strawn”), pro se,1 appeals from the judgment of
sentence entered following his conviction of driving under the influence—
general impairment (“DUI”), and the summary offenses of driving while
license is suspended or revoked (DUI related), and driving vehicle at safe
speed.2 We affirm.
On August 18, 2017, at about 2:19 a.m., Londonderry Township Police
Officer Scott Firestone (“Officer Firestone”) observed a silver Ford Focus
automobile traveling westbound on Horseshoe Pike, at an unreasonable
speed. After stopping the vehicle, Officer Firestone detected that the driver,
____________________________________________
1The trial court conducted a hearing pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998), and appointed standby counsel to assist Strawn.
2 See 75 Pa.C.S.A. §§ 3802(a)(1), 1543, 3361.
J-S57043-19
Strawn, had an odor of alcohol on his breath. Strawn admitted to Officer
Firestone that he had consumed two shots and one beer prior to driving.
During the vehicle stop, Strawn was unable to produce identification,
but provided Officer Firestone with his name and date of birth. Upon checking
Strawn’s information, Officer Firestone discovered that Strawn’s operating
privileges were suspended/expired.3 Strawn consented to a breathalyzer test,
but declined to perform a field sobriety test. Later, Strawn refused to take a
blood alcohol content test.
In its April 2, 2019, Opinion, the trial court summarized the extensive
procedural history underlying the instant appeal, which we adopt for the
purpose of this appeal, with the following addendum. See Trial Court Opinion,
4/2/19, at 2-7. On April 2, 2019, the trial court denied Strawn’s post-sentence
Motion. Thereafter, Strawn filed the instant timely appeal, followed by a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of
on appeal.
Strawn does not include a statement of questions involved in his
appellate brief, as is required by Pa.R.A.P. 2116. Rule 2116 provides, in
relevant part, as follows:
General rule. The statement of the questions involved must
state concisely the issues to be resolved, expressed in the terms
and circumstances of the case but without unnecessary detail. The
____________________________________________
3 It was subsequently determined that Strawn’s operating privileges had
expired on June 30, 2001.
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statement will be deemed to include every subsidiary question
fairly comprised therein. No question will be considered
unless it is stated in the statement of questions involved or
is fairly suggested thereby. Each question shall be followed by
an answer stating simply whether the court or government unit
agreed, disagreed, did not answer, or did not address the
question. If a qualified answer was given to the question,
appellant shall indicate the nature of the qualification, or if the
question was not answered or addressed and the record shows
the reason for such failure, the reason shall be stated briefly in
each instance without quoting the court or government unit below.
Pa.R.A.P. 2116 (emphasis added). Thus, we could deem all of Strawn’s issues
waived, as they are not included in a statement of questions involved. See
id. We recognize that Strawn has chosen to proceed pro se. However, pro
se status confers no special benefit upon a litigant, and any person choosing
to represent himself in a legal proceeding, must assume, to a reasonable
extent, his lack of expertise and legal training will be his undoing.
Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005).
Nevertheless, to the extent that we are able to discern Strawn’s claims, we
decline to find waiver in this instance.
Strawn first challenges the denial of his pretrial suppression Motion.
See Brief for Appellant at 5 (unnumbered). Strawn appears to challenge
whether probable cause existed to justify the vehicle stop effectuated by
Officer Firestone. Id. Strawn states that Officer Firestone stopped Strawn’s
vehicle for driving at an unsafe speed. Id. However, Strawn takes issue with
the Commonwealth’s evidence, particularly Officer Firestone’s testimony that
Strawn “was going faster than what I believe was the posted speed.” Id.
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(citation omitted). According to Strawn, Officer Firestone testified that Strawn
was traveling at over 50 miles per hour, five miles per hour over the posted
speed limit. Id. at 6 (unnumbered). Strawn contends that Officer Firestone
did not use a testing device to determine his speed, nor did a second officer
testify regarding Strawn’s speed. Id. at 6-7 (unnumbered). Strawn claims
that a second officer’s testimony is necessary to establish that he exceeded
the speed limit. Id. (unnumbered).
Our standard of review of an order denying a motion to suppress is as
follows:
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,
as here, 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. Kemp, 195 A.3d 269, 275 (Pa. Super. 2018) (citations
and internal quotation marks omitted).
In its Opinion filed on June 19, 2018, the suppression court set forth an
extensive analysis of the law, evaluated the totality of the circumstances
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establishing probable cause to effectuate a vehicle stop, and concluded that
Strawn’s claim lacks merit. See Suppression Court Opinion, 6/19/18, at 4-
17. We agree with the sound reasoning of the suppression court, as set forth
in its Opinion, and affirm on this basis with regard to Strawn’s first claim. See
id.
In his second claim, Strawn challenges the sufficiency of the evidence
underlying the verdict, and the verdict as against the weight of the evidence.
See Brief for Appellant at 27 (unnumbered). Strawn first directs our attention
to the Criminal Information, which did not state the speed at which Strawn
was traveling. Id. Strawn argues that Officer Firestone failed to produce a
certificate of accuracy regarding his speedometer, and directs our attention to
contradictions between Officer Firestone’s testimony at the preliminary
hearing and his trial testimony. Id. at 28-29 (unnumbered). Strawn further
sets forth other, purportedly contradictory testimony, and challenges Officer
Firestone’s credibility. Id. at 30 (unnumbered). Strawn also directs our
attention to statutes and regulations regarding the testing of breathalyzer
devices for accuracy. Id. at 31-33 (unnumbered). According to Strawn,
“Officer Firestone has offered false testimony to all aspects of a pre-arrest
breath test[.]” Id. at 34 (unnumbered).
In its Opinion filed on April 2, 2019, the trial court set forth the
appropriate standard of review and applicable law, addressed Strawn’s claim,
and concluded that it lacks merit. See Trial Court Opinion, 4/2/19, at 9-13
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(addressing the sufficiency and weight claims), 14-18 (addressing Strawn’s
assertions regarding the breathalyzer testing device). We agree with the
sound reasoning of the trial court, and affirm on the basis of its Opinion with
regard to these claims. See id.
Strawn next presents a series of claims under the general heading,
“Abuse of Discretion.” Brief for Appellant at 38 (unnumbered). As best as we
are able to discern, Strawn first challenges the trial court’s refusal to consider
certain pro se pre-trial Motions, which he filed while he was represented by
counsel. See id. at 40-41.
Our review of the record discloses that the charges were lodged against
Strawn on September 25, 2017. The trial court appointed counsel for Strawn
on November 11, 2017. On December 7, 2017, Strawn filed pro se pre-trial
Motions for dismissal of the charges. On December 22, 2017, Strawn’s court-
appointed attorney filed counseled Omnibus Pre-Trial Motions seeking the
dismissal of the charges based upon improprieties at the preliminary hearing
and a violation of Pa.R.Crim.P. 571. Strawn, pro se, also sought habeas
corpus and other relief. The trial court denied Strawn’s pro se Motions,
without prejudice to pursue his right to relief through a counseled motion.
A defendant has no right to hybrid representation. Commonwealth v.
Ellis, 626 A.2d 1137, 1139 (Pa. 1993); see also Commonwealth v. Ali, 10
A.3d 282, 293 (Pa. 2010) (characterizing as a “legal nullity” a pro se Pa.R.A.P.
1925(b) statement filed by an appellant who was represented by counsel);
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Commonwealth v. Colson, 490 A.2d 811, 822 (Pa. 1985) (holding that there
is no constitutional right for a represented defendant to act as co-counsel).
Because Strawn was represented by counsel at the time the trial court denied
his pro se Motions, he is not entitled to relief.
Strawn again appears to contest the Commonwealth’s failure to provide
analysis and data regarding the accuracy of the portable breathalyzer device
used by Officer Firestone. Brief for Appellant at 44 (unnumbered). As set
forth above, this claim lacks merit, for the reasons set forth in the trial court’s
April 2, 2019, Opinion. See Trial Court Opinion, 4/2/19, at 14-18.
Strawn next asserts that he was denied his right to counsel during his
preliminary hearing. See Brief for Appellant at 41. The Sixth Amendment
right to the assistance of counsel attaches at the initiation of formal judicial
proceedings against an individual by way of formal charge, preliminary
hearing, indictment, information, or arraignment. Commonwealth v.
Briggs, 12 A.3d 291, 324 (Pa. 2011). Once the Sixth Amendment right to
counsel attaches, “the prosecutor and police have an affirmative obligation
not to act in a manner that circumvents and thereby dilutes the protection
afforded by the right to counsel.” Maine v. Moulton, 474 U.S. 159, 171
(1985).
The determination whether particular action by state agents
violates the accused’s right to the assistance of counsel must be
made in light of this obligation. Thus, the Sixth Amendment is not
violated whenever—by luck or happenstance—the State obtains
incriminating statements from the accused after the right to
counsel has attached. However, knowing exploitation by the State
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of an opportunity to confront the accused without counsel being
present is as much a breach of the State’s obligation not to
circumvent the right to the assistance of counsel as is the
intentional creation of such an opportunity. Accordingly, the Sixth
Amendment is violated when the State obtains incriminating
statements by knowingly circumventing the accused’s right to
have counsel present in a confrontation between the accused and
a state agent.
Id. at 176. Although a defendant is entitled to counsel at the preliminary
hearing, a defendant is not entitled to relief where no prejudice results from
counsel’s absence. See Commonwealth v. Melnyczenko, 358 A.2d 98, 99
(Pa. Super. 1976) (citing Commonwealth v. Geiger, 316 A.2d 881, 883 (Pa.
1974), and determining that an arraignment was not fatally defective
where the defendant appeared pro se and entered a plea of not guilty, where
counsel was appointed shortly after arraignment, and defendant’s ability to
present a defense suffered no prejudice).
Here, the preliminary hearing took place on October 26, 2017. Counsel
for Strawn entered his appearance on November 11, 2017. The record reflects
that counsel represented Strawn from that date until Strawn chose to proceed
pro se. There is nothing of record demonstrating that Strawn suffered
prejudice resulting from the lack of counsel at the preliminary hearing.
Consequently, we cannot grant him relief on this claim. See Melnyczenko,
358 A.2d at 99; Commonwealth v. Jones, 308 A.2d 598, 602-03 (Pa. 1973)
(finding that an arraignment was not fatally defective where the defendant
appeared pro se, signed a pauper’s oath, and entered a plea of not guilty
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where counsel was appointed shortly after arraignment and defendant’s ability
to present a defense suffered no prejudice).
To the extent that Strawn raises additional claims that are unsupported
by citation to the record and applicable legal authorities, we deem such claims
waived. See Pa.R.A.P. 2119(a) (stating that each point in the argument must
be “followed by such discussion and citation of authorities as are deemed
pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924-25 (Pa. 2009)
(stating that claims are waived “where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review” and holding
appellant’s single-sentence arguments constituted “the type of cursory legal
discussion which is wholly inadequate to preserve an issue for appellate
review.”).
In the final section of his brief, entitled “Constitutional Issues,” Strawn
sets forth bald allegations of constitutional violations, without citation to
pertinent authorities or to the places in the record where these violations
purportedly occurred.4 Accordingly, these claims are waived. See Pa.R.A.P.
2119(a); Johnson, 985 A.2d at 924-25.
Judgment of sentence affirmed.
____________________________________________
4 We note that Strawn cites 75 Pa.C.S.A. § 1547(b), and cases filed by the
Pennsylvania Commonwealth Court, which address the civil penalties for
refusing a blood alcohol test. Strawn fails to argue how these authorities are
pertinent or relevant in this criminal proceeding.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothono
Date: 1/13/2020
- 10 -
Circulated 12/09/2019 01:42 PM
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CLERK OF COURTS
LEBANON.PA
2u18 JUN 19 PM 2 51
IN THE COURT OF COMMON PLEAS LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : NO. CP-38-CR-1996-2017
vs
STEPHEN STRAWN
ORDER OF COURT
AND NOW, this 19th day of June, 2018, in accordance with the
attached Opinion, the DEFENDANT'S Motion to Dismiss based upon his
challenge to Officer Firestone's traffic stop is DENIED. The DEFENDANT
is to appear at the Criminal Call of the List scheduled for July 10, 2018 at
8: 30a.m. in the designated Court Room. His trial is scheduled to commence
at 8:30 a. m. on July 23, 2018 in Court Room #3. Any trial or sentencing in
the above case is to be conducted before this jurist.
BY THE COURT:
BL/I�
BRADFORD H. CHARLES
J.
BHC/pmd
cc: Matthew Mellon, Esquire// District Attorney's Office-�+
Stephen Strawn// c/o LCCF, 730 E. Walnut St., Lebanon PA 17042 � I
Jason J. Schibinger, Esquire// PO Box 49 Lebanon PA 17042-fhrii-/eq
Court Administration (order only) --�
1
ENTEF,ED & FILE'.J
CLERK OF c OURTS
LEBANON, PA
2C1B 1..1l!N 19 pr, 2 5z
IN THE COURT OF COMMON PLEAS LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : NO. CP-38-CR-1996-2017
vs
STEPHEN STRAWN
APPEARANCES
Matthew Mellon, Esquire For Commonwealth of Pennsylvania
DISTRICT ATTORNEY'S OFFICE
Stephen Strawn pro se
Jason J. Schibinger, Esquire Stand-by counsel for Stephen Strawn
OPINION BY CHARLES, J., June 19, 2018
Can a pol ice officer initiate a traffic stop based upon an
unsubstantiated estimate of speed? The Commonwealth argues that when
a police officer observed the DEFENDANT driving past his parked cruiser
at a speed estimated to significantly exceed the posted I im it, the officer
was justified in effectuating a traffic stop. The DEFENDANT responds by
stating that he was doing nothing other than "driving while black". We issue
this opinion to address the viability of the traffic stop that led to
DEFENDANT's arrest.
1
I. FACTS
The DEFENDANT is a self-represented litigant who has filed almost
weekly motions to challenge the legitimacy of the charges lodged against
him. For a multitude of reasons, this Court has rejected all of the
DEFENDANT's numerous arguments except one before us today. We issue
this opinion to address the DEFENDANT's challenge to the legitimacy of
the traffic stop that led to his arrest. On that issue, we conducted a Factual
Hearing on May 10, 2018. At that hearing, we learned the following facts.1
In the early morning of August 18, 2017, Officer Scott Firestone of
the South Londonderry Township Police Department was sitting in a marked
police cruiser observing traffic proceeding on US Route 322, otherwise
known as the Horseshoe Pike. Shortly after two o'clock in the morning,
Officer Firestone observed a silver Ford Focus travelling at a high rate of
speed past his location. Officer Firestone pulled onto Route 322 and began
to follow the Ford Focus vehicle.
Officer Firestone testified that when he pulled onto Horseshoe Pike,
he was located approximately one-quarter of a mile to the east of the
intersection of Route 117 and Horseshoe Pike. 2 He also testified that he
accelerated his own police cruiser to sixty (60) miles per hour and was
barely able to get closer to the Ford Focus. Officer Firestone therefore
engaged his lights and siren. After he did so, the Ford Focus proceeded to
I
We prepared this Opinion without a transcript. The facts set forth herein are based upon our notes and recollection.
2
We are familiar with this intersection. To the west, route 322 enters the village ofCampbelltown where houses and
businesses are located on both sides of the roadway. To the north, Rt. 117 enters a residential area.
2
turn right onto Route 117 at a speed far greater than was appropriate for
such a turn. During the turn, the Focus proceeded into the oncoming lane
of traffic on Route 117 before returning to the correct lane of travel. After
Officer Firestone turned his police cruiser onto Route 117, the Ford Focus
did eventually pull to the side of the road.
In the ensuing encounter, Officer Firestone learned that the
DEFENDANT was the driver of the Focus vehicle. Officer Firestone learned
that the DEFENDANT did not possess a valid Pennsylvania Driver's
License. In addition, Officer Firestone detected evidence that the
DEFENDANT had been consuming alcohol. He therefore asked the
DEFENDANT to perform field sobriety tests. The DEFENDANT refused. He
also transported the DEFENDANT to a hospital for a blood test. The
DEFENDANT refused to provide a sample of his blood.
Officer Firestone filed charges for Driving Under the Influence of
Alcohol, Driving while Operating Privileges are Suspended or Revoked-DUI
related and several other Summary Offenses. The DEFENDANT was
appointed counsel. He subsequently "fired" his attorney. We conducted a
Grazier Hearing on February 7, 2018. As a result of that hearing, we
permitted the DEFENDANT to represent himself and we appointed Attorney
Elliott R. Katz to serve as stand-by counsel. Following the Pre-Trial
Hearing that occurred on May 8, 2018, we solicited legal briefs from both
parties. We have now received those briefs and we issue this opinion to
3
address the DE FEN DAN T's challenge of the traffic stop conducted by
Officer Firestone.
II. DISCUSSION
A. General Precepts
In order to stop a motorist, a police officer must have "a rticu I able and
reasonable grounds" or "probable cause" to suspect a violation of
Pennsylvania's Motor Vehicle Code. This precise standard to analyze
traffic stops has been in a state of flux since the decision of Pennsylvania's
Supreme Court in Commonwealth v. Whitmyer, 668 A.2d 1113 (Pa. 1995).
In Whitmyer, Pennsylvania's Supreme Court had declared that probable
cause was necessary for a police officer to conduct a traffic stop. Following
Whitmyer, Pennsylvania's Legislature enacted a statute 75 Pa. C.S.A.
§6308, that authorized traffic stops whenever police possess "articulable
and reasonable grounds" to suspect a violation of the Vehicle Code. Since
the enactment of § 6308, Courts have employed both the "probable cause"
standard and the "reasonable ground" standard often interchangeably.
In Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008), the Supreme
Court affirmed the constitutionality of 75 Pa. C.S.A. § 6308. However, the
Court in Chase declared that § 6308 applies only to "investigatory stops"
where there is a need for the motorist to stop so that police can secure
additional information necessary to enforce the Vehicle Code. Chase made
it clear that § 6308 "does not allow all stops to be based on the lower
4
quantum - it merely allows this for investigatory stops, consistent with the
requirements of both the Federal and State constitutions." Id at page 116.
Where a vehicle stop is effectuated due to a violation of the Motor
Vehicle Code that does not require additional investigation, it must be
supported by probable cause. Commonwealth v. Feczko, 10 A.3d 1285
(Pa. Super. 2010). In the case of a traffic stop for speeding, Pennsylvania's
Superior Court has declared that "probable cause" is the proper standard.
Commonwealth v. Salter, 121 a. 3d 987 (Pa. Super. 2015). This is because
"When a vehicle is stopped, nothing more can be determined as to the
speed of the vehicle when it was observed while traveling on a highway."
Id at page 993.
In determining whether probable cause exists, "there is no
requirement that an actual violation be established". Commonwealth v.
Vincett, 806 A.2d 31 (Pa. Super. 2002). Probable cause has been defined
as existing "where the facts and circumstances within the knowledge of the
officer are based upon reasonably trustworthy information and are sufficient
to warrant a man of reasonable caution in the belief that the suspect has
committed or is committing a crime." Commonwealth v. Joseph, 34 A.3d
855, 863 (Pa. Super. 2011 ); Commonwealth v. Thompson, 985 A.2d 928,
931 (Pa. 2009). "It is the facts and circumstances within the personal
knowledge of the police officer that frames the determination of the
existence of probable cause." Commonwealth v. Galendez, 23 A.3d 1042,
1046 (Pa. Su per. 2011). Ascertaining probable cause requires an analysis
5
of the totality of circumstances known to the police officer. Galendez,
supra.
In this case, Officer Firestone engaged his lights and siren because
he believed the DEFENDANT was driving too fast for existing conditions.
After Officer Firestone engaged his lights and siren, the DEFENDANT was
seen making an improper and dangerous right-hand turn. The question
before this Court today is whether either of the observations by Officer
Firestone provided him with probable cause to effectuate a traffic stop. In
deciding this issue, we will address both the speeding and the improper
rig ht-hand turn.
(a) Speeding
The DEFENDANT claims that a traffic stop cannot be predicated
solely upon a police officer's opinion of a vehicle's speed. In support of
this position, the DEFENDANT relies primarily upon the Pennsylvania
Supreme Court decision of Commonwealth v. Whitmyer, 668 A.2d 1113
(Pa. 1995). In Whitmyer, a Pennsylvania State Police Trooper opined that
the Defendant was traveling roughly 15 miles per hour in excess of the
posted speed lfmit. He based his opinion upon his years of experience as
a State Police Trooper and his own police cruiser's speedometer. However,
the trooper followed the Defendant for only two-tenths of a mile. The
Supreme Court held that the trooper's traffic stop was not supported by
probable cause. Emphasizing that a Pennsylvania statute authorizes use
6
of a speedometer as a speed-timing device only when the speed is
measured for three-tenths of a mile or more, the Supreme Court stated:
"If the trooper was unable to clock Appellee for three-
tenths of a mile or observe the conditions that would
warrant a citation for driving at an unsafe speed, there is
no further evidence that could be obtained from a
subsequent stop and investigation. Thus, we conclude
that the fruits of the u n lawfu I stop were correctly
suppressed." Id at page 1118.
As can be imagined, Whitmyer spawned a multitude of different
challenges to traffic stops across the Commonwealth of Pennsylvania. As
noted above, Whitmyer also prompted the Pennsylvania Legislature to
enact a statute to ameliorate the practical problems for pol ice that
Whitmyer engendered. Ultimately, more recent Appellate Court decisions
have tended to interpret Whitmyer narrowly.
According to the Westlaw search engine, eighty-four (84) Appellate
cases have cited Whitmyer since 1995. Not all of these cases involved a
traffic stop for speeding. However, several did. Without promising to be
comprehensive, we will endeavor to highlight the key cases decided since
Whitmyer where a Defendant challenged a traffic stop based upon an
officer's opinion regarding the speed of a motor vehicle:
( 1) Commonwealth v. Butler, 856 A.2d 131 (Pa. Super. 2004)
In Butler, Philadelphia police officers observed the
Defendant's vehicle traveling at 50 to 60 miles per hour in a
posted 25 mile per hour zone. The Defendant also weaved in
and out of traffic and even traversed onto the concrete median.
7
Citing the fact that the Defendant was driving down a populated
street in a city, the Superior Court stated that police had "more
than sufficient probable ca use that Butler had violated the
Vehicle Code. The initial stop was therefore justified." Id at
page 135.3
(2) Commonwealth v. Fredericks, 2015 WL 7722041 (Pa. Su per.
2015)4
In this case, a police trooper utilized a radar gun to
measure the speed of Defendant's vehicle at 82 miles per hour
in a 65 mile per hour zone. The officer decided to afford the
Defendant with "a break" by not citing him for speeding.
Because the Defendant was not charged with speeding, the
trooper did not verify the certificate of accuracy for his radar
gun. Because of this, the Defendant argued that his traffic stop
should be suppressed. The Superior Court disagreed and
stated:
"We hold Trooper Zaykowski had probable cause to stop
Appellant for speeding, even though the Commonwealth
could not produce at trial documentation showing that the
radar gun used was an approved, properly calibrated
speed-testing device. Trooper Zaykowski did not need to
have sufficient evidence to convict Appellant of speeding
when he stopped him. Rather, he needed only probable
cause. He met that standard here. His radar gun timed
Appellant's speed at 82 mph in a 65 mph zone - almost
3
Interestingly, some of the evidence used by the police to determine probable cause occurred after the police officer
had activated her lights and sirens. Thus, post-activation driving was deemed to be relevant to the issue of probable
cause.
4
Fredericks is a Memorandum Opinion. It is therefore not binding precedent. We cite it only as persuasive authority.
8
20 mph over the speed limit. True, the Commonwealth
lacked documentation showing the radar gun's accuracy,
because Trooper Zaykowski did not record which unit he
used. Such documentation, however, is not necessary to
establish probable cause.' ... Importantly, the actual
accuracy of the radar gun is the wrong inquiry in
determining probable cause. Rather, the proper inquiry is
whether Trooper Zaykowski reasonably believed it was
accurate.' The suppression inquiry is analyzed from the
perspective of the officer, and there is no requirement that
an actual Vehicle Code Violation be established, only that
there be a reason ab le basis for the officer's action in
stopping the vehicle." Commonwealth v. Vincett, 806
A.2d 31, 33 (Pa. Super. 2002)."
(3) Commonwealth v. Heberling, 6787 A.2d 794 (Pa. Super. 1996)
Police observed a vehicle traveling "at an extreme rate of
speed" in a 45 mile per hour zone while he was one-tenth of a
mile from an intersection and two- to three-tenths of a mile in
front of the crest of a hill. The Defendant was stopped before
reaching either of these points. Weather conditions were clear.
No other traffic was affected, nor were any pedestrians put at
risk. Under these circumstances - which are very close to the
ones at bar - the Superior Court affirmed the traffic stop and
stated:
"There is no question that speeding alone does not
constitute a violation of this statute (driving at an unsafe
speed). There must be proof of speed that is
unreasonable or imprudent under the circumstances (of
which the re must also be proof), which are the
"conditions" and "actual and potential hazards then
existing" of the roadway. These circumstances may
include not only the amount of traffic, pedestrian travel
and weather conditions, but also the nature of the roadway
itself (e.g., whether 4-lane interstate, or rural; flat and
9
wide, or narrow and winding over hilly terrains; smooth
surface or full of potholes; clear or under construction with
abrupt lane shifts.) It is circumstances under which one's
speed may be found sufficiently unreasonable and
imprudent to constitute a violation of§ 3361, even if the
driver has adhered to the posted speed limit.. ..
Approaching a hillcrest and approaching an intersection
are "conditions" specifically enumerated in the statute that
require a driver to proceed at a safe and appropriate
speed. When Appellant drove at an excessive speed
under these conditions, she violated § 3361." Id at pages
795-796; 797.
(4) Commonwealth v. Judy, 2016 WL 6820539 (Pa. Super. 2016)5
In this case, a Pennsylvania State Police Trooper followed
the Defendant's vehicle on US Route 30 for a quarter of a mile.
Using a calibrated speedometer in his police cruiser, the trooper
indicated that the Defendant was traveling 60 miles per hour in
a 40 mile per hour zone. There were no other vehicles on the
roadway. At no time did the vehicle leave its proper lane of
travel. The Suppression Court held that the officer's estimate
of speed over one-quarter of a mile, did not rise to the level of
probable cause necessary to support a traffic stop. Based upon
Whitmyer, a panel of the Superior Court affirmed the Trial
Court's decision and declared the officer's use of a
speedometer to measure the Defendant's speed over a distance
5
Like Fredericks, Judy was a Memorandum Opinion and is being cited a persuasive, as opposed to binding,
precedent.
10
of less than three-tenths of a mile to be insufficient to create
probable cause.
(5) Commonwealth v. Little, 903 A.2d 1269 (Pa. Super. 2006)
In Little, the pol ice observed a Defendant approaching
the crest of a hill which obscured vision of an intersection on
the other side of the crest. The officer described the
Defendant's vehicle as accelerating "to its fullest capability."
The officer estimated that the Defendant's vehicle was traveling
40-45 miles per hour in a 35 mile per hour zone. Relying upon
Whitmyer, the Defendant challenged the traffic stop. The
Superior Court rejected the Defendant's challenge and stated
that the officer's testimony was sufficient to establish
reasonable grounds for the belief that the Defendant violated
the Motor Vehicle Code.
(6) Commonwealth v. Minnich, 874 A.2d 1244 (Pa. Super. 2005)
The police officer in Minnich observed the Defendant
drive around a curve and over a hill "at a very high rate of
speed" on an icy roadway. Emphasizing that the Defendant was
not only speeding, but was also proceeding around a blind
curve, the Superior Court concluded:
"The question remains, then, whether the act of speeding,
at the approach to an intersection, when the speed is
11
estimated by the observing officer, with no other traffic in
the area, when the officer observes "a lot of dust and
cinders" blowing up from the icy roadway as the vehicle
comes around a sharp curve as it crests a hill, establishes
a violation of the Driving-Vehicle-at-Safe-Speed statute.
We have carefully reviewed the record and conclude that
the Suppression Court's factual findings of the
surrounding circumstances are sufficient for the trier of
fact to have concluded beyond a reasonable doubt that
Appellant was operating his vehicle at an unsafe speed.
Accordingly, we conclude that the stop of Appellant's
vehicle was lawful. .. " Id at page 1238.
(7) Commonwealth v. Parrish, 2016 WL4849251 (Pa. Super.
2016)6
In Parrish, a police officer was parked along a roadway
with a 35 mile per hour speed limit. The officer observed a
vehicle traveling "at a high rate of speed". Based upon his
experience, the officer estimated that the vehicle was traveling
about 65 miles per hour. In affirming the validity of the traffic
stop, the Superior court chastised the Defendant for conflating
probable cause with proof beyond a reasonable doubt. The
Court stated:
"Establishing approved speed timing methods, § 3368 only
speaks to the evidence necessary for a conviction.
Appellant would have us replace the current probabilistic
standard required for traffic stops with one hitherto
confined to formal adjudicatory proceedings. Adopting
such a position wou Id graft an impossible burden into the
law: The need to have enough evidence before a
conviction before pulling a vehicle over .... In this case,
6
Parrish is also a Memorandum Opinion. It is not therefore binding precedent. We cite it only as persuasive
authority.
12
Officer Carpenter was patrolling a stretch of highway with
which he was well familiar. Carpenter knew the posted
speed limit and the usual pace of traffic along Hellam
Street. After observing Appel I ant's vehicle, Carpenter's
experience with traffic enforcement enabled his to
estimate Appellant's speed as being nearly doubled the
posted speed I im it."
Based upon this reasoning, the Court determined that the
officer's estimate of the Defendant's speed was sufficient to
create probable cause.
(8) Commonwealth v. Perry, 982 A.2d 1009 (Pa. Super. 2009)
Perry was a case emanating from Lebanon County where
this jurist denied a Defendant's Suppression Motion. In Perry,
an Annville Township Police Officer observed a vehicle stopped
at the intersection of US Route 422 and Route 934. When the
light turned to green, the vehicle "took off at a high rate of
speed". To investigate, the officer had to speed his cruiser to
40 miles per hour in a 25 mile per hour zone. The Defendant
challenged the subsequent traffic stopped based upon
Whitmyer. The Superior Court rejected this challenge and
stated:
"Instantly, Appellant drove 15 miles per hour faster than
the posted speed limit of 25 miles per hour on a road that
was wet and slushy. Because Minnich established that
potential danger is sufficient to satisfy the probable cause
standard, we discern no legal error in concluding that the
instant facts are sufficient to meet the lower standard of
reasonable suspicion ... In conclusion, we hold that
Minnich, which established that speeding may create
sufficient potential for causing an accident under certain
13
circumstances to warrant a finding of probable cause, also
applies to the current standard of reasonable suspicion.
Accordingly, the Suppression Court did not err in
concluding Officer Robinson had reasonable suspicion to
stop Appellant." Id at page 1012-1013.
(9)Commonwealth v. Ulman, 902 A.2d 514 (Pa. Super. 2006)
Police officers were stopped along Route 30 in York at
approximately 2am when they observed a Defendant traveling
at a "high rate of speed". The officers estimated that the speed
was approximately 60-65 miles per hour in a 35 mile per hour
zone. The Superior Court rejected the Defendant's Suppression
Motion, stating that the officer "was entitled to draw reasonable
inferences from the facts in light of his twelve years of
experience. Based on this experience and the facts as he
perceived them, [the officer] reasonable concluded that
violations of the Motor Vehicle Code were being committed." Id
at page 518.
(10) Commonwealth v. Wilbert, 858 A.2d 124 7 (Pa. Super. 2004)
In this case, a police officer witnessed the Defendant
traveling from the opposite direction and traveling toward her
cruiser at a speed of roughly 60 miles per hour in a 45 mile per
hour zone. The officer also noticed a nauseating odor coming
from the vehicle. She therefore turned around and began
following the vehicle. During this period of time, the Defendant
crossed the center line and the fog line of the roadway on
14
numerous occasions. Citing Whitmyer, the Defend ant
challenged the viability of the traffic stop. The Superior Court
rejected the challenge. Based upon a totality of information
presented, the Court held that the traffic stop was appropriate.
As is evident from the decisional precedent outlined above, every
case involving an officer's estimate of speed is different. Each must be
evaluated based upon the unique factual circumstances apparent to the
police officer when he effectuated the traffic stop. In this case, Officer
Firestone was aware of the following:
• That it was 2 a.m. and that traffic on US Route 322 was light;
• That US Route 322 is one of the most heavily traveled roadways in
Lebanon County. Even at 2 a.m., vehicles could be expected to travel
on Route 322.
• That the posted speed limit at Route 322 where Officer Firestone was
parked was 45 miles per hour;
• That Officer Firestone perceived that the DEFENDANT'S vehicle was
traveling significantly in excess of the posted speed limit as it passed
the officer's location;
• That the intersection of Route 322 and Route 117 is located
approximately one-quarter of a mile to the west of where Officer
Firestone was located. The DEFENDANT's vehicle was traveling
toward this intersection.
15
\.
• That the town of Campbelltown is located immediately on the other
side of the intersection of Route 322 and Route 117. Th is town is
comprised of closely-spaced residences, churches and businesses.
The speed limit in Campbelltown is lower than the speed limit where
the officer first observed the DEFENDANT's vehicle.7
• That a residentia I housing development is situated to the north of the
intersection of Route 117 and Route 322 on Route 117. 7
• That any motorist traveling at the speed observed of the
DEFENDANT'S vehicle would create a traffic hazard at the
intersection of Route 322 and Route 117, or traveling along either
Route 322 or Route 117 on the other side of the intersection.
• When Officer Firestone pulled onto Route 322 in order to follow the
DEFENDANT's vehicle, he had to accelerate quickly to reach 60 miles
per hour and did not appreciably catch up to the DEFENDANT.
• Based upon his experience, Officer Firestone estimated the
DEFENDANT was speeding at least 15 miles per hour in excess of
the posted speed limit.
It is the opinion of this Court that Officer Firestone had probable
cause to effectuate a traffic stop of the DEFENDANT's vehicle. While only
one or two factors outlined above may not establish probable cause, the
7
We do not recall specific testimony at the Suppression Hearing regarding the existence of Campbelltown and the
layout of the roadways at or near the intersection of Route 322 and Route 117. However, we know that the intersection
is located in Officer Firestone's jurisdiction and he is familiar with the area. This Court is also familiar with the area
and we have taken judicial notice of the configuration of the roadways and surrounding buildings.
16
totality of all of the above clearly establishes that Officer Firestone was
justified in stopping the DEFENDANT.
(b) I mp roper Rig ht-Hand Turn
We accept as self-evident that Officer Firestone could conduct a
traffic stop of any motorist who performed a right-hand turn similar to the
one the DEFENDANT attempted from US Route 322 onto Route 117.
Whenever a motorist tries to accomplish a turn at an excessive rate of
speed and drifts into the oncoming lane of travel as a result, that motorist
has violated Pennsylvania's Motor Vehicle Code. Section 3331 of the Code
states that "The driver of a vehicle intending to turn right shall approach
the turn and make the turn as close as practicable to the right-hand curb or
edge of the roadway." 75 Pa.C.S.A. § 3331. Clearly, the DEFENDANT's
turn from Route 322 onto Route 117 did not comport with this standard.
The prob I em in this case is that Officer Firestone had already
engaged his lights and siren when he observed the DEFENDANT's improper
turn. The DEFENDANT now claims that his improper turn is immaterial to
the question of whether police cou Id effectuate a lawfu I traffic stop. The
DEFENDANT argues that anything he did after Officer Firestone engaged
his lights and siren is irrelevant to the lawfulness of the ultimate traffic stop.
It is true that a traffic stop officially "occurs" when a police officer
activates lights and siren. Commonwealth v. Livingstone, 174 A.3d 609
(Pa. 2017). However, this precept does not automatically lead to the
17
conclusion that everything that occurs thereafter should be deemed
irrelevant. To the contrary, police cannot and should not ignore the
Defendant's driving violations after lights and siren are activated. In the
opinion of this Court, unsafe driving is unsafe, regardless of whether it
occurs before or after a police officer engages his lights and siren.
In Commonwealth v. Scattone, 672 A.2d 345 (Pa. Super. 1996), a
police officer engaged his lights and siren to stop a vehicle based upon
information he received from a witness. After the lights and siren were
activated, the Defendant led police on a three (3) mile chase and committed
numerous traffic violations in the process. The Defendant defended against
his violations by claiming that police did not have probable cause to
effectuate an initial stop. He attempted to characterize probable cause as
a "condition precedent to validating police pursuit and a citizen's violating
of § 3733(a) for fleeing and attempting to allude police." Id at page 346.
Pennsylvania's Superior Court rejected the Defendant's position. The
Superior Court noted that citizens are not permitted to raise unlawfulness
of the arrest as a defense to a resisting arrest charge. In part because of
this, the Court concluded "A citizen is not permitted to avoid a via lation of
§3733(a) under the cloak of a no probable cause or articulable suspicion to
believe criminal activity is afoot by police."
In the opinion of this Court, the DEF EN DAN T's improper right turn
onto Route 117 provided separate and independent justification for Officer
Firestone's traffic stop. The mere fact that the improper right turn occurred
18
after Officer Firestone had engaged his lights and siren does not afford the
DEFENDANT with a defense to a charge of violating the Motor Vehicle
Code, nor does it erase the existence of probable cause based upon Officer
Firestone's observation of the improper turn. For this reason also, we
believe that Officer Firestone's traffic stop of the DEFENDANT was proper.
Ill. CONCLUSION
There is absolutely no evidence whatsoever that race played a role in
Officer Firestone's traffic stop of the DEFENDANT.8 However, Officer
Firestone did immediately perceive that the DEFENDANT'S vehicle was
traveling too fast and his perception was confirmed when he could not catch
the DEFENDANT's vehicle despite accelerating in own to 60 miles per hour.
If the DEFENDANT's speeding were not enough, Officer Firestone then
observed the DEFENDANT make a dangerous right-hand turn that would
have caused an accident had another vehicle been located on Route 117.
All of the above justified Officer Firestone's traffic stop. Therefore, the
events that occurred thereafter should not be suppressed. An Order to
effectuate these decisions will be entered today's date.
8
Indeed, given that the DEFENDANT's vehicle traveled past Officer Firestone's position in the middle of the night
at an area of the highway that was unlit and at a high rate of speed, we conclude that it was unlikely that Officer
Firestone even realized the race of the driver of the speeding vehicle.
19
Circulated 12/09/2019 01:42 PM
ENTE,1 D & Ff LE'.J
CLERK OF COURT0
LEBANDN,PA
2C1B �'UN 19 PP1 2 52
IN THE COURT OF COMMON PLEAS LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA : NO. CP-38-CR-1996·2017
vs
STEPHEN STRAWN
APPEARANCES
Matthew Mellon, Esquire For Commonwealth of Pennsylvania
DISTRICT ATTORNEY'S OFFICE
Stephen Strawn pro se
Jason J. Schibinger, Esquire Stand-by counsel for Stephen Strawn
OPINION BY CHARLES. J., June 19, 2018
Can a police officer initiate a traffic stop based upon an
unsubstantiated estimate of speed? The Commonwealth argues that when
a police officer observed the DEFENDANT driving past his parked cruiser
at a speed estimated to significantly exceed the posted limit, the officer
was justified in effectuating a traffic stop. The DEFENDANT responds by
stating that he was doing nothing other than "driving while black". We issue
this opinion to address the viability of the traffic stop that led to
DEFENDANT's arrest.
1
I. FACTS
The DEFENDANT is a self-represented litigant who has filed almost
weekly motions to challenge the legitimacy of the charges lodged against
him. For a multitude of reasons, this Court has rejected all of the
DEFENDANT's numerous arguments except one before us today. We issue
this opinion to address the DEFENDANT's challenge to the legitimacy of
the traffic stop that led to his arrest. On that issue, we conducted a Factual
Hearing on May 10, 2018. At that hearing, we learned the following facts.1
I n the ea rl y morn in g of Aug us t 1 8 , 2 0 1 7 , Officer Scott F i rest one of
the South Londonderry Township Police Department was sitting in a marked
police cruiser observing traffic proceeding on US Route 322, otherwise
known as the Horseshoe Pike. Shortly after two o'clock in the morning,
Officer Firestone observed a silver Ford Focus travelling at a high rate of
speed past his location. Officer Firestone pulled onto Route 322 and began
to follow the Ford Focus vehicle.
Officer Firestone testified that when he pulled onto Horseshoe Pike,
he was Io cat e d a pp r ox i mate I y on e-q u a rte r of a m ii e to the east of the
intersection of Route 117 and Horseshoe Pike. 2 He also testified that he
accelerated his own police cruiser to sixty (60) miles per hour and was
barely able to get closer to the Ford Focus. Officer Firestone therefore
engaged his lights and siren. After he did so, the Ford Focus proceeded to
lWe prepared this Opinion without a transcript. The facts set forth herein are based upon our notes and recollection.
2
We are familiar with this intersection. To the west, route 322 enters the village of Campbelltown where houses and
businesses are located on both sides of the roadway. To the north, Rt. 117 enters a residential area.
2
turn right onto Route 117 at a speed far greater than was appropriate for
such a turn. During the turn, the Focus proceeded into the oncoming lane
of traffic on Route 117 before returning to the correct lane of travel. After
Office r Firestone tu rn e d his po Ii c e c r u is e r onto Route 11 7 , the Ford Focus
did eventually pull to the side of the road.
In the ensuing encounter, Officer Firestone learned that the
DEFENDANT was the driver of the Focus vehicle. Officer Firestone learned
that the DEFENDANT did not possess a valid Pennsylvania Driver's
License. In addition, Officer Firestone detected evidence that the
DEFENDANT had been consuming alcohol. He therefore asked the
DEFENDANT to perform field sobriety tests. The DEFENDANT refused. He
also transported the DEFENDANT to a hospital for a blood test. The
DEFENDANT refused to provide a sample of his blood.
Officer Firestone filed charges for Driving Under the Influence of
Alcohol, Driving while Operating Privileges are Suspended or Revoked-DUI
related and several other Summary Offenses. The DEFENDANT was
appointed counsel. He subsequently "fired" his attorney. We conducted a
Grazier Hearing on February 7, 2018. As a result of that hearing, we
permitted the DEFENDANT to represent himself and we appointed Attorney
Elliott R. Katz to serve as stand-by counsel. Following the Pre-Trial
Hearing that occurred on May 8, 2018, we solicited legal briefs from both
parties. We have now received those briefs and we issue this opinion to
3
address the DEFENDANT's challenge of the traffic stop conducted by
Officer Firestone.
II. DISCUSSION
A. General Precepts
In order to stop a motorist, a police officer must have "articulable and
reasonable grounds" or "probable cause" to suspect a violation of
Pennsylvania s Motor Vehicle Code. This precise standard to analyze
1
traffic stops has been in a state of flux since the decision of Pennsylvania's
Supreme Court in Commonwealth v. Whitmyer, 668 A.2d 1113 (Pa. 1995).
In Whitmyer, Pennsylvania s Supreme Court had declared that probable
1
cause was necessary for a police officer to conduct a traffic stop. Following
Whitmyer, Pennsylvania's Legislature enacted a statute 75 Pa. C.S.A.
§6308, that authorized traffic stops whenever police possess "articulable
and reasonable qrounds" to suspect a violation of the Vehicle Code. Since
the enactment of§ 6308, Courts have employed both the "probable cause"
standard and the "reasonable ground" standard often interchangeably.
In Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008), the Supreme
Court affirmed the constitutionality of 75 Pa. C.S.A. § 6308. However, the
Court in Chase declared that § 6308 applies only to "investigatory stops"
where there is a need for the motorist to stop so that police can secure
additional information necessary to enforce the Vehicle Code. Chase made
it clear that § 6308 "does not allow all stops to be based on the lower
4
quantum - it merely allows this for investigatory stops, consistent with the
requirements of both the Federal and State constitutions." Id at page 116.
Where a vehicle stop is effectuated due to a violation of the Motor
Vehicle Code that does not require additional investigation, it must be
supported by probable cause. Commonwealth v. Feczko, 10 A.3d 1285
(Pa. Super. 2010). In the case of a traffic stop for speeding, Pennsylvania's
Superior Court has declared that "probable cause" is the proper standard.
Commonwealth v. Salter, 121 a.3d 987 (Pa. Super. 2015). This is because
"When a vehicle is stopped, nothing more can be determined as to the
speed of the vehicle when it was observed while traveling on a highway."
Id at page 993.
In determining whether probable cause exists, "there is no
requirement that an actual violation be established". Commonwealth v.
Vincett, 806 A.2d 31 (Pa. Super. 2002). Probable cause has been defined
as existing "where the facts and circumstances within the knowledge of the
officer are based upon reasonably trustworthy information and are sufficient
to warrant a man of reasonable caution in the belief that the suspect has
committed or is committing a crime." Commonwealth v. Joseph, 34 A.3d
855, 863 (Pa. Super. 2011 ); Commonwealth v. Thompson, 985 A.2d 928,
931 (Pa. 2009). "It is the facts and circumstances within the personal
knowledge of the police officer that frames the determination of the
existence of probable cause." Commonwealth v. Galendez, 23 A.3d 1042,
1046 (Pa. Super. 2011 ). Ascertaining probable cause requires an analysis
5
of the totality of circumstances known to the police officer. Galendez,
supra.
In this case, Officer Firestone engaged his lights and siren because
he believed the DEFENDANT was driving too fast for existing conditions.
After Officer Firestone engaged his lights and siren, the DEFENDANT was
seen making an improper and dangerous right-hand turn. The question
before this Court today is whether either of the observations by Officer
Firestone provided him with probable cause to effectuate a traffic stop. In
deciding this issue, we will address both the speeding and the improper
right-hand turn.
(a) Speeding
The DEFENDANT claims that a traffic stop cannot be predicated
solely upon a police officer's opinion of a vehicle's speed. In support of
this position, the DEFENDANT relies primarily upon the Pennsylvania
Supreme Court decision of Commonwealth v. Whitmyer, 668 A.2d 1113
(Pa. 1995). In Whitmyer, a Pennsylvania State Police Trooper opined that
the Defendant was traveling roughly 15 miles per hour in excess of the
posted speed limit. He based his opinion upon his years of experience as
a State Police Trooper and his own police cruiser's speedometer. However,
the trooper followed the Defendant for only two-tenths of a mile. The
Supreme Court held that the trooper's traffic stop was not supported by
probable cause. Emphasizing that a Pennsylvania statute authorizes use
6
of a speedometer as a speed-timing device only when the speed is
measured for three-tenths of a mile or more, the Supreme Court stated:
"If the trooper was unable to clock Appellee for three-
tenths of a mile or observe the conditions that would
warrant a citation for driving at an unsafe speed, there is
no further evidence that could be obtained from a
subsequent stop and investigation. Thus, we conclude
that the fruits of the unlawful stop were correctly
suppressed." Id at page 1118.
As can be imagined, Whitmyer spawned a multitude of different
challenges to traffic stops across the Commonwealth of Pennsylvania. As
noted above, Whitmyer also prompted the Pennsylvania Legislature to
enact a statute to ameliorate the practical problems for police that
Whitmyer engendered. Ultimately, more recent Appellate Court decisions
have tended to interpret Whitmyer narrowly.
According to the Westlaw search engine, eighty-four (84) Appellate
cases have cited Whitmyer since 1995. Not all of these cases involved a
traffic stop for speeding. However, several did. Without promising to be
comprehensive, we will endeavor to highlight the key cases decided since
Whitmyer where a Defendant challenged a traffic stop based upon an
officer's opinion regarding the speed of a motor vehicle:
(1) Commonwealth v. Butler, 856 A.2d 131 (Pa. Super. 2004)
In Butler, Philadelphia police officers observed the
Defendant's vehicle traveling at 50 to 60 miles per hour in a
posted 25 mile per hour zone. The Defendant also weaved in
and out of traffic and even traversed onto the concrete median.
7
Citing the fact that the Defendant was driving down a populated
street in a city, the Superior Court stated that police had "more
than sufficient probable cause that Butler had violated the
Vehicle Code. The initial stop was therefore justified." Id at
page 135.3
(2) Commonwealth v. Fredericks, 2015 WL 7722041 (Pa. Super.
2015)4
In this case, a police trooper utilized a radar gun to
measure the speed of Defendant's vehicle at 82 miles per hour
in a 65 mile per hour zone. The officer decided to afford the
Defendant with "a break" by not citing him for speeding.
Because the Defendant was not charged with speeding, the
trooper did not verify the certificate of accuracy for his radar
gun. Because of this, the Defendant argued that his traffic stop
should be suppressed. The Superior Court disagreed and
stated:
"We hold Trooper Zaykowski had probable cause to stop
Appellant for speeding, even though the Commonwealth
could not produce at trial documentation showing that the
radar gun used was an approved, properly calibrated
speed-testing device. Trooper Zaykowski did not need to
have sufficient evidence to convict Appellant of speeding
when he stopped him. Rather, he needed only probable
cause. He met that standard here. His radar gun timed
Appellant's speed at 82 mph in a 65 mph zone - almost
3
Interestingly, some of the evidence used by the police to determine probable cause occurred after the police officer
had activated her lights and sirens. Thus, post-activation driving was deemed to be relevant to the issue of probable
cause.
4
Fredericks is a Memorandum Opinion. It i therefore not binding precedent. We cite it only as persuasive authority.
8
20 mph over the speed limit. True, the Commonwealth
lacked documentation showing the radar gun's accuracy,
because Trooper Zaykowski did not record which unit he
used. Such documentation, however, is not necessary to
establish probable cause.' ... Importantly, the actual
accuracy of the radar gun is the wrong inquiry in
determining probable cause. Rather, the proper inquiry is
whether Trooper Zaykowski reasonably believed it was
accurate.' The suppression inquiry is analyzed from the
perspective of the officer, and there is no requirement that
an actual Vehicle Code Violation be established, only that
there be a reasonable basis for the officer's action in
stopping the vehicle." Commonwealth v. Vincett, 806
A.2d 31, 33 (Pa. Super. 2002)."
(3) Commonwealth v. Heberling, 6787 A.2d 794 (Pa. Super. 1996)
Police observed a vehicle traveling "at an extreme rate of
speed" in a 45 mile per hour zone while he was one-tenth of a
mile from an intersection and two- to three-tenths of a mile in
front of the crest of a hill. The Defendant was stopped before
reaching either of these points. Weather conditions were clear.
No other traffic was affected, nor were any pedestrians put at
risk. Under these circumstances - which are very close to the
ones at bar - the Superior Court affirmed the traffic stop and
stated:
"There is no question that speeding alone does not
constitute a violation of this statute (driving at an unsafe
speed). There must be proof of speed that is
unreasonable or imprudent under the circumstances (of
which the re must also be proof), which are the
"conditions" and "actual and potential hazards then
existing" of the roadway. These circumstances may
include not only the amount of traffic, pedestrian travel
and weather conditions, but also the nature of the roadway
itself (e.g., whether 4-lane interstate, or rural; flat and
9
wide, or narrow and winding over hilly terrains; smooth
surface or full of potholes; clear or under construction with
abrupt lane shifts.) It is circumstances under which ones
speed may be found sufficiently unreasonable and
imprudent to constitute a violation of § 3361, even if the
driver has adhered to the posted speed limit.. ..
Approaching a hillcrest and approaching an intersection
are "conditions" specifically enumerated in the statute that
require a driver to proceed at a safe and appropriate
speed. When Appellant drove at an excessive speed
under these conditions, she violated § 3361." Id at pages
795-796; 797.
(4) Commonwealth v. Judy, 2016 WL 6820539 (Pa. Super. 2016)5
In this case, a Pennsylvania State Police Trooper followed
the Defendant's vehicle on US Route 30 for a quarter of a mile.
Using a calibrated speedometer in his police cruiser, the trooper
indicated that the Defendant was traveling 60 miles per hour in
a 40 mile per hour zone. There were no other vehicles on the
roadway. At no time did the vehicle leave its proper lane of
travel. The Suppression Court held that the officer's estimate
of speed over one-quarter of a mile, did not rise to the level of
probable cause necessary to support a traffic stop. Based upon
Whitmyer, a panel of the Superior Court affirmed the Trial
Court's decision and declared the officer's use of a
speedometer to measure the Defendant's speed over a distance
5
Like Fredericks, Judy was a Memorandum Opinion and is being cited a persuasive, as opposed to binding,
precedent.
10
of less than three-tenths of a mile to be insufficient to create
probable cause.
(5) Commonwealth v. Little, 903 A.2d 1269 (Pa. Super. 2006)
In Little, the police observed a Defendant approaching
the crest of a hill which obscured vision of an intersection on
the other side of the crest. The officer described the
Defendant's vehicle as accelerating "to its fullest capability."
The officer estimated that the Defendant's vehicle was traveling
40-45 miles per hour in a 35 mile per hour zone. Relying upon
Whitmyer, the Defendant challenged the traffic stop. The
Superior Court rejected the Defendant's challenge and stated
that the officer's testimony was sufficient to establish
reasonable grounds for the belief that the Defendant violated
the Motor Vehicle Code.
(6) Commonwealth v. Minnich, 874 A.2d 1244 (Pa. Super. 2005)
The police officer in Minnich observed the Defendant
drive around a curve and over a hill "at a very high rate of
speed" on an icy roadway. Emphasizing that the Defendant was
not only speeding, but was also proceeding around a blind
curve, the Superior Court concluded:
"The question remains, then, whether the act of speeding,
at the approach to an intersection, when the speed is
11
estimated by the observing officer, with no other traffic in
the area, when the officer observes "a lot of dust and
cinders" blowing up from the icy roadway as the vehicle
comes around a sharp curve as it crests a hill, establishes
a violation of the Driving-Vehicle-at-Safe-Speed statute.
We have carefully reviewed the record and conclude that
the Suppression Court's factual findings of the
surrounding circumstances a re sufficient for the trier of
fact to have concluded beyond a reasonable doubt that
Appellant was operating his vehicle at an unsafe speed.
Accordingly, we conclude that the stop of Appellant's
vehicle was lawful. .. " Id at page 1238.
(7) Commonwealth v. Parrish, 2016 WL4849251 (Pa. Super.
2016)6
In Parrish, a police officer was parked along a roadway
with a 35 mile per hour speed limit. The officer observed a
vehicle traveling "at a high rate of speed Based upon his
11•
experience, the officer estimated that the vehicle was traveling
about 65 miles per hour. In affirming the validity of the traffic
stop, the Superior court chastised the Defendant for conflating
probable cause with proof beyond a reasonable doubt. The
Court stated:
"Establishing approved speed timing methods, § 3368 only
speaks to the evidence necessary for a conviction.
Appellant would have us replace the current probabilistic
standard required for traffic stops with one hitherto
confined to formal adjudicatory proceedings. Adopting
such a position would graft an impossible burden into the
law: The need to have enough evidence before a
conviction before pulling a vehicle over .... In this case,
6
Parrish is also a Memorandum Opinion. It is not therefore binding precedent. We cite it only as persuasive
authority.
12
Officer Carpenter was patrolling a stretch of highway with
which he was well familiar. Carpenter knew the posted
speed limit and the usual pace of traffic along Hellam
Street. After observing Appellant's vehicle, Carpenter's
experience with traffic enforcement enabled his to
estimate Appellant's speed as being nearly doubled the
posted speed limit."
Based upon this reasoning, the Court determined that the
officer's estimate of the Defendant's speed was sufficient to
create probable cause.
(8) Commonwealth v. Perry, 982 A.2d 1009 (Pa. Super. 2009)
Perry was a case emanating from Lebanon County where
this jurist denied a Defendant's Suppression Motion. In Perry,
an Annville Township Police Officer observed a vehicle stopped
at the intersection of US Route 422 and Route 934. When the
light turned to green, the vehicle "took off at a high rate of
speed". To investigate, the officer had to speed his cruiser to
40 miles per hour in a 25 mile per hour zone. The Defendant
challenged the subsequent traffic stopped based upon
Whitmyer. The Superior Court rejected this challenge and
stated:
"Instantly, Appellant drove 15 miles per hour faster than
the posted speed limit of 25 miles per hour on a road that
was wet and slushy. Because Minnich established that
potential danger is sufficient to satisfy the probable cause
standard, we discern no legal error in concluding that the
instant facts are sufficient to meet the lower standard of
reasonable suspicion ... In conclusion, we hold that
Minnich, which established that speeding may create
sufficient potential for causing an accident under certain
13
circumstances to warrant a finding of probable cause, also
applies to the current standard of reasonable suspicion.
Accordingly, the Suppression Court did not err in
concluding Officer Robinson had reasonable suspicion to
stop Appellant." Id at page 1012-1013.
(9)Commonwealth v. Ulman, 902 A.2d 514 (Pa. Super. 2006)
Police officers were stopped along Route 30 in York at
approximately 2am when they observed a Defendant traveling
at a "high rate of speed". The officers estimated that the speed
was approximately 60-65 miles per hour in a 35 mile per hour
zone. The Superior Court rejected the Defendanfs Suppression
Motion, stating that the officer "was entitled to draw reasonable
inferences from the facts in light of his twelve years of
experience. Based on this experience and the facts as he
perceived them, [the officer] reasonable concluded that
violations of the Motor Vehicle Code were being committed." Id
at page 518.
(10) Commonwealth v, Wilbert, 858 A.2d 124 7 (Pa. Super. 2004)
In this case, a police officer witnessed the Defendant
traveling from the opposite direction and traveling toward her
cruiser at a speed of roughly 60 miles per hour in a 45 mile per
hour zone. The officer also noticed a nauseating odor coming
from the vehicle. She therefore turned around and began
following the vehicle. During this period of time, the Defendant
crossed the center line and the fog line of the roadway on
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numerous occasions. Citing Whitmyer, the Defendant
challenged the viability of the traffic stop. The Superior Court
rejected the challenge. Based upon a totality of information
presented, the Court held that the traffic stop was appropriate.
As is evident from the decisional precedent outlined above, every
case involving an officer's estimate of speed is different. Each must be
evaluated based upon the unique factual circumstances apparent to the
police officer when he effectuated the traffic stop. In this case, Officer
Firestone was aware of the following:
• That it was 2 a.m. and that traffic on US Route 322 was light;
• That US Route 322 is one of the most heavily traveled roadways in
Lebanon County. Even at 2 a.rn., vehicles could be expected to travel
on Route 322.
• That the posted speed limit at Route 322 where Officer Firestone was
parked was 45 miles per hour;
• That Officer Firestone perceived that the DEFENDANT'S vehicle was
traveling significantly in excess of the posted speed limit as it passed
the officer's location;
• That the intersection of Route 322 and Route 117 is located
approximately one-quarter of a mile to the west of where Officer
Firestone was located. The DEFENDANT's vehicle was traveling
toward this intersection.
15
• That the town of Campbelltown is located immediately on the other
side of the intersection of Route 322 and Route 117. This town is
comprised of closely-spaced residences, churches and businesses.
The speed limit in Campbelltown is lower than the speed limit where
the officer first observed the DEFENDANT's vehicle.7
• That a residential housing development is situated to the north of the
intersection of Route 117 and Route 322 on Route 117. 7
• That any motorist traveling at the speed observed of the
DEFENDANT's vehicle would create a traffic hazard at the
intersection of Route 322 and Route 117, or traveling along either
Route 322 or Route 117 on the other side of the intersection.
• When Officer Firestone pulled onto Route 322 in order to follow the
DEFENDANT'S vehicle, he had to accelerate quickly to reach 60 miles
per hour and did not appreciably catch up to the DEFENDANT.
• Based upon his experience, Officer Firestone estimated the
DEFENDANT was speeding at least 15 miles per hour in excess of
the posted speed limit.
It is the opinion of this Court that Officer Firestone had probable
cause to effectuate a traffic stop of the DEFENDANT's vehicle. While only
one or two factors outlined above may not establish probable cause, the
7
We do not recall specific testimony at the Suppression Hearing regarding the existence of Campbelltown and the
layout of the roadways at or near the intersection of Route 322 and Route 117. However, we know that the intersection
is located in Officer Firestone s jurisdiction and he is familiar with the area. This Court is also familiar with the area
and we have taken judicial notice of the configuration of the roadways and surrounding buildings.
16
totality of all of the above clearly establishes that Officer Firestone was
justified in stopping the DEFENDANT.
(b) Improper Right-Hand Turn
We accept as self-evident that Officer Firestone could conduct a
traffic stop of any motorist who performed a right-hand turn similar to the
one the DEFENDANT attempted from US Route 322 onto Route 117.
Whenever a motorist tries to accomplish a turn at an excessive rate of
speed and drifts into the oncoming lane of travel as a result, that motorist
has violated Pennsylvania's Motor Vehicle Code. Section 3331 of the Code
states that "The driver of a vehicle intending to turn right shall approach
the turn and make the turn as close as practicable to the right-hand curb or
edge of the roadway." 75 Pa.C.S.A. § 3331. Clearly, the DEFENDANT's
turn from Route 322 onto Route 117 did not comport with this standard.
The problem in this case is that Officer Firestone had already
engaged his lights and siren when he observed the DEFENDANT's improper
turn. The DEFENDANT now claims that his improper turn is immaterial to
the question of whether police could effectuate a lawful traffic stop. The
DEFENDANT argues that anything he did after Officer Firestone engaged
his lights and siren is irrelevant to the lawfulness of the ultimate traffic stop.
It is true that a traffic stop officially "occurs" when a police officer
activates lights and siren. Commonwealth v. Livingstone, 174 A.3d 609
(Pa. 2017). However, this precept does not automatically lead to the
17
conclusion that everything that occurs thereafter should be deemed
irrelevant. To the contrary, police cannot and should not ignore the
Defendant's driving violations after lights and siren are activated. In the
opinion of this Court, unsafe driving is unsafe, regardless of whether it
occurs before or after a police officer engages his lights and siren.
In Commonwealth v. Scattone, 672 A.2d 345 (Pa. Super. 1996), a
police officer engaged his lights and siren to stop a vehicle based upon
information he received from a witness. After the lights and siren were
activated, the Defendant led police on a three (3) mile chase and committed
numerous traffic violations in the process. The Defendant defended against
his violations by claiming that police did not have probable cause to
effectuate an initial stop. He attempted to characterize probable cause as
a "condition precedent to validating police pursuit and a citizen's violating
of§ 3733(a) for fleeing and attempting to allude police." Id at page 346.
Pennsylvania's Superior Court rejected the Defendant's position. The
Superior Court noted that citizens are not permitted to raise unlawfulness
of the arrest as a defense to a resisting arrest charge. In part because of
this, the Court concluded "A citizen is not permitted to avoid a violation of
§3733(a) under the cloak of a no probable cause or articulable suspicion to
believe criminal activity is afoot by police."
In the opinion of this Court, the DEFENDANT's improper right turn
onto Route 117 provided separate and independent justification for Officer
Firestone's traffic stop. The mere fact that the improper right turn occurred
18
after Officer Firestone had engaged his lights and siren does not afford the
DEFENDANT with a defense to a charge of violating the Motor Vehicle
Code, nor does it erase the existence of probable cause based upon Officer
Firestone's observation of the improper turn. For this reason also, we
believe that Officer Firestone's traffic stop of the DEFENDANT was proper.
Ill. CONCLUSION
There is absolutely no evidence whatsoever that race played a role in
Officer Firestone's traffic stop of the DEFENDANT. 8 However, Officer
Firestone did immediately perceive that the DEFENDANT's vehicle was
traveling too fast and his perception was confirmed when he could not catch
the DEFENDANT's vehicle despite accelerating in own to 60 miles per hour.
If the DEFENDANT's speeding were not enough, Officer Firestone then
observed the DEFENDANT make a dangerous right-hand turn that would
have caused an accident had another vehicle been located on Route 117.
All of the above justified Officer Firestone's traffic stop. Therefore, the
events that occurred thereafter should not be suppressed. An Order to
effectuate these decisions will be entered today's date.
8
Indeed, given that the DEFENDANT's vehicle traveled past Officer Firestone's position in the middle of the night
at an area of the highway that was unlit and at a high rate of speed, we conclude that it was unlikely that Officer
Firestone even realized the race of the driver of the speeding vehicle.
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