Com. v. Nell, T. ( 2020 )

J-A11011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TODD ALLAN NELL : No. 477 MDA 2019
Appeal from the Order Entered February 15, 2019
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006141-2018
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY McLAUGHLIN, J.:
FILED DECEMBER 15, 2020
I respectfully dissent. I believe the trial court applied the wrong
standards. The court was concerned with a supposed lack of evidence of Nell’s
speed, rather than with whether there were reasonable grounds to believe he
was going too fast for conditions. It also looked for conclusive evidence of
violations, rather than evidence to establish probable cause to believe that
they had occurred.
Officer Henry testified that the defendant passed the officer’s vehicle at
an “estimated speed of over 40 in a 25 but continuation at high rate of speed
through several different roadways.” He said this occurred in a residential area
____________________________________________
* Former Justice specially assigned to the Superior Court.
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where there were often pedestrians at that time of night, and along a route
where the conditions rendered doing so unsafe.
His estimated speed of over 40 in a 25 but continuation at high
rate of speed through several different roadways. There is some
hazard there to include a hill, which you can clearly see he
disappears afterwards. There’s a potential hazard of cross traffic
in different intersections.
The vehicle then accelerates across train tracks where there
is a dip on the other side of the roadway. He kind of avoids that
by going into the oncoming traffic lane and then continues to a
slight right-hand turn.
So in the essence of hazards on the roadway, there are
some. It is 2:00 at night, so traffic is limited, but we do have
pedestrians that are out at that time, although none are seen in
the video.
N.T. Suppression Hearing, 2/15/19, at 16.
The trial court credited Officer Henry’s testimony, other than his
estimation of Nell’s speed, but nonetheless found probable cause lacking. I
would conclude that the Commonwealth carried its burden to establish that
the arresting officer, Officer Henry, had probable cause.
The trial judge first concluded that the officer’s estimation that the
defendant was going “over 40 in a 25” was insufficient to support the stop,
because the court considered Officer Henry’s testimony in this regard to be of
insufficient weight to support the stop. In support, the court cited
Commonwealth v. McCandless, 648 A.2d 309, 311 (Pa. 1994), where the
Supreme Court held that an officer’s testimony that a vehicle was going faster
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than others on the road was insufficient, standing alone, to afford the officer
probable cause to stop the driver for “speeding.”
The court’s reliance on McCandless was misplaced. That case was
about probable cause to stop a suspect for “speeding,” not for Driving Vehicle
at Safe Speed, which does not require that the defendant have been traveling
at any particular speed. Rather, Driving Vehicle at Safe Speed, to paraphrase,
prohibits drivers from “driv[ing] a vehicle at a speed greater than is
reasonable and prudent under the conditions. . . .” 75 Pa.C.S.A. § 3361.
Officer Henry thus did not need to estimate Nell’s speed. He instead only
needed to have good grounds to believe that Nell was driving too fast for
conditions, and I believe that he did.
The court then turned to the dashcam video to determine if it contained
“anything additional that can be added to Officer Henry’s estimation of the
Appellee’s speed as being forty in a twenty-five.” The court concluded that
because the video showed the officer cutting through alleyways in an effort to
catch up to Nell, who was traveling on the main streets, it did not establish
that Nell was speeding. Rather, the court was of the opinion that delays the
officer experienced by going through the alleys gave Nell time to get far ahead
of the officer:
Combining the testimony of Officer Henry with the dashcam video
observed by this Court multiple times, we can state clearly that
Officer Henry was not able to observe the Appellee’s driving for
much of the pursuit as Officer Henry was taking a roundabout
drive in an attempt to get behind the Appellee’s vehicle. The
officer succeeded in doing so, but his circuitous journey through a
maze of alleyways, to include entering the wrong way in one of
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those alleys, left him far behind the Appellee. This Court’s
observation of the video leaves it convinced that Officer Henry's
good instincts regarding where the Appellee intended to drive to
led the officer to end up behind the Appellee's vehicle but at a
disadvantageous point. Simply put, the officer’s circuitous journey
through the alleyways gave the Appellee sufficient time to end up
far in advance of the officer once the officer returned to the main
roadways. No useful conclusions regarding the Appellee's speed
could be garnered from this portion of the video. We continue on
with what can be observed in conjunction with the officer's
testimony.
The judge in closing revealingly concludes, “[A]n officer’s recounting of
a vehicle pursuit that contains repeated assertions that the vehicle was
travelling at a high rate of speed does not settle the issue as to whether the
vehicle was actually travelling at a high rate of speed.”
I respectfully believe that the trial court placed too much emphasis on
whether Nell was, in fact, speeding, when that was not the issue at the
suppression hearing. The court also improperly disregarded Officer Henry’s
testimony, which the judge credited (other than the estimation of the speed),
and which demonstrated that Officer Henry had just cause to believe that Nell
was in violation of Driving Vehicle at Safe Speed. He testified that Nell passed
him at a high rate of speed, and there were several hazards in the area that,
in the officer’s experience, made the speed at which Nell was driving unsafe.
Regardless of whether Officer Henry was able to estimate accurately Nell’s
speed, his other testimony established probable cause.
As discussed above, McCandless is inapposite. That case is quite
different from the one before us, as the record here provides a basis for Officer
Henry to have reasonably believed that Nell was violating Driving Vehicle at
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Safe Speed. I conclude the case before us is akin to Commonwealth v.
Minnich, 874 A.2d 1234, 1239 (Pa.Super. 2005). There, we concluded that
an officer’s estimation that a vehicle was traveling in excess of the speed limit
– in light of the officer’s training and experience – as it approached an
intersection, and as it came around a sharp curve at the crest of a hill, was
sufficient to give the officer probable cause to stop the driver for violating
Driving Vehicle at Safe Speed.
The facts of our case, though of course not precisely identical to those
in Minnich, are sufficiently similar to Minnich as to require the same
conclusion here. I would reverse the suppression order and remand for trial.
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