Com. v. Prowant, E. ( 2021 )

J-S14025-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EMILY ELISABETH PROWANT :
:
Appellant : No. 1442 MDA 2020
Appeal from the Judgment of Sentence Entered October 22, 2020
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000043-2020
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 22, 2021
Appellant Emily Elisabeth Prowant appeals from the Judgment of
Sentence imposed after the trial judge convicted her of Driving Under the
Influence-Highest Rate (2nd offense).1 Appellant challenges the denial of her
Motion to Suppress. After careful review, we affirm on the basis of the
suppression court’s Opinion filed June 24, 2020.
We glean the underlying facts from the trial court’s opinion denying
Appellant’s Motion to Suppress. At approximately 2:00 AM on September 9,
2019, Officer Joseph Scharf of the State College Police Department was
monitoring traffic when he observed Appellant driving her vehicle very fast on
High Street, in comparison to other vehicles travelling on the same road at
the same time. Officer Scharf followed the vehicle as it continued on East
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1 75 Pa.C.S. § 3802(c).
J-S14025-21
College Avenue and observed the vehicle weaving in its lane and crossing over
the fog line by a few feet at least twice. He initiated a traffic stop and upon
approaching the vehicle, smelled alcohol. In speaking with Appellant, Officer
Scharf noticed her face was flushed and her eyes were red and watery.
Appellant admitted to having consumed alcohol thirty minutes prior to the
stop. Officer Scharf conducted field sobriety tests, which Appellant failed.
Officer Scharf arrested her and transported her to the hospital where a blood
draw revealed a blood alcohol content (“BAC”) of 0.212%. The
Commonwealth charged her on November 14, 2019, with two counts of DUI
and one count of Driving on Roadways Laned for Traffic, 75 Pa.C.S. § 3309.2
Appellant filed a Motion to Suppress asserting that Officer Scharf did not
have probable cause to initiate the traffic stop. The suppression court held a
hearing on June 5, 2020, at which Officer Scharf testified that he saw Appellant
cross over the fog line by three or four feet two times in less than a mile. The
court admitted dash cam video from Officer Scharf’s vehicle showing Appellant
crossing over the fog line on four separate occasions. The court concluded
that based on the totality of the circumstances, Officer Scharf had probable
cause to believe a violation of the traffic code had occurred. Accordingly, the
____________________________________________
2 75 Pa.C.S. § 3309(1) provides that a “vehicle shall be driven as nearly as
practicable entirely within a single lane[.]”
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J-S14025-21
court held that the traffic stop was constitutional, and any evidence obtained
as a result of the stop would not be suppressed.3
On August 27, 2020, Appellant proceeded to a stipulated bench trial4 at
which, inter alia, the trial court admitted the dash cam video and the notes of
testimony from the suppression hearing. The court explicitly found Appellant
guilty of count 2, DUI-Highest Rate (2nd offense) after the Commonwealth
indicated it was “not moving forward on” counts 1 and 3. N.T., 8/27/2020, at
9.
On October 22, 2020, the court sentenced Appellant to a five-year term
of probation with restrictive conditions, including 120 days’ in-home detention,
for DUI-Highest Rate (2nd offense).5, 6
____________________________________________
3 The court also concluded that the stop was supported by Officer Scharf’s
reasonable suspicion that Appellant was driving while intoxicated after he
observed her vehicle’s excessive speed, weaving, and crossing the fog line
four times. Tr. Ct. Op., 6/24/20, at 5-6.
4 At the same August 27, 2020 proceeding, prior to the instant stipulated trial,
the Commonwealth revoked ARD imposed in connection with a prior DUI-
Highest Rate docketed at No. CP-14-CR-1919-2018, and Appellant entered a
negotiated guilty plea to that offense.
5 At the sentencing proceeding, the court first sentenced Appellant on docket
no. 1919-2018 to 72 hours’ incarceration. See N.T. Sentencing, 10/22/2020,
at 3, 7. The court imposed the sentence in the instant case to run consecutive
to that prior sentence. Id. at 10.
6 Notwithstanding that the trial court’s docket indicates the court found
Appellant not guilty of Counts 1 and 3, the sentencing order explicitly states
that there shall be no separate sentence for Counts 1 and 3. Order, filed
11/6/2020, at ¶14.
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J-S14025-21
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement. The court responded by relying on its June 24, 2020 Opinion
denying the Suppression Motion.
Appellant raises the following issue for our review:
Whether the trial court erred in denying [Appellant’s] Motion to
Suppress evidence obtained as a result of an illegal stop?
Appellant’s Br. at 6.
Appellant contends that the court erred in denying her suppression
motion because there was no evidence that Appellant’s “momentary
deviations from [her] line of travel . . . endanger[ed] public safety. Id. at 16.
This argument fails to garner relief.
We review the suppression court’s denial of a motion to suppress to
determine whether the record supports the court’s factual findings and
whether the legal conclusions drawn from those facts are correct.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007). In
conducting this review, we consider “only the evidence of the prosecution and
so much of the evidence of the defense as remains uncontradicted when read
in the context of the record as a whole.” Id. We are bound by the facts as
found by the suppression court, so long as they are supported by the record.
Id. We “may reverse only if the legal conclusions drawn therefrom are in
error.” Id.-4-
J-S14025-21
“It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given to their testimony.
The suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003) (citation omitted).
We have carefully reviewed the record, including the notes of testimony
from the suppression hearing. As summarized above, the suppression court
thoroughly reviewed the evidence presented at the suppression hearing before
filing a comprehensive Opinion setting forth statutory and case law pertaining
to the constitutionality of traffic stops that are supported by reasonable
suspicion and probable cause. Tr. Ct. Op., at 1-4. Our review of the record
and relevant case law supports the court’s factual findings and legal
conclusions. We, thus, affirm on the basis of the suppression court’s Opinion.
The parties are directed to annex the suppression court’s June 24, 2020
Opinion to any future filings.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2021
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CCOMONNI?
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IN THE COURT OF CO ON PLEAS OF CENTRE COUNTY, PENNSYLVANIA.
CRIMINAL DIVISION
COMMONWEALTH
H OF PE SYLVANIA
V. No. CP-14-CR-0043-2020
EMILY PROWANT,
Defendant
Attorney for the Commonwealt. Joshua Bower, Esq.
Attorney for Defendant: Andrew J. Shubin, .Esq.
OPINION and ORDER
Ruest, F.J.
Presently before the Col is Emily Prowant's ("Defendant") Motion to Suppress'—'-'
C ..
-
c..
Evidence filed on February 21, 2020. A hearing was held June 5, 2020. Upon rduiPy of tl}56 ;
M^-
evidence and arguments of cou set, the Court finds as follows:
Findings of Fact
1. Defendant was charged by Criminal Complaint dated November 14, 201 :
•with on6,R)
count of Driving Unde the Influence pursuant to 75 Pa.C.S.A. §3802(a)(1), one (1) count
of Driving Under the Influence pursuant to 75 Pa.C:S.A. §3802(c), and one (1) count of
Driving on Roadways aped for Traffic (Summary) pursuant to 75 Pa.C.S.A. §3309.
2. On September 9, 2019, Officer Joseph Scharf of the State College Police Department
("Officer Scharf') made atraffic stop of Defendant on East College Avenue.
3. At approximately 2:00 a.m., Officer Scharf was monitoring traffic from his patrol car
when he observed awl 'te Toyota Prius driving visibly fast on the 100 block of High
Street.
4. Officer Scharf noted the vehicle was being driven visibly fast in comparison to the
approximate speed of ther vehicles traveling on the same road at that time.
00 Ci RD CIS
5. Officer Scharf followed the vehicle, which continued eastbound on East College Avenue.
6, Officer Scharf observed it cross over the fog line by afew feet on two separate occasions.
7. Video from Officer Sch sdashboard camera in his patrol vehicle showed the vehicle
weaving in its lane and cross over the fog line on four separate occasions
8, Officer Scharf then activated his emergency lights and initiated atraffic stop.
9. Upon approaching the vehicle, Officer Scharf detected an odor of alcohol, observed
Defendant's face was fll shed and her eyes were red and watery.
10, Defendant admitted to having consumed alcohol thirty minutes prior to the stop and had
trouble locating her registration paperwork.
11. Officer Scharf asked D Pendant to exit the vehicle and administered field sobriety tests.
12. Defendant performed satisfactorily on the field sobriety tests, was placed under arrest,
and was transported tot eMount Nittany Medical Center, where ablood draw revealed a
0.212% BAC,
Conclusions of Law
1. Suppression of evidenc is governed by Pennsylvania Rule of Criminal Procedure 581,
which permits aDefeni [ant to make amotion "to suppress any evidence alleged to have
been, obtained in violat' on of the defendant's rights." Pa.R,Crim.P. 581.
2. At asuppression heari g, the Commonwealth has the burden of proving the evidence was
properly obtained by a.reponderance of the evidence. Commonwealth v. Galendez,
2011 PA Super, 180, 2 A.3 d. 1042, 1046.
3. Police officers may co duct avehicle stop when they possess probable cause that atraffic
violation has occurred. Corumomvealth v. Chase, 599 Pa. 80, 960 A.2d 108, 113 (2008).
2
Appendix "B-1"
4. "Probable cause to arres exists when the facts and circumstances within the police
officer's knowledge and fwhich the officer has reasonably trustworthy information are
sufficient in themselves owarrant aperson of reasonable caution in the belief that an
offense has been committed by the person to be arrested .Probable cause justifying a
warrantless arrest is determined by the totality of the circumstances." Galendez, 27 A.3d
at 1046 (quoting Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008))
5. An officer may stop acE it if he has reasonable suspicion to suspect that aviolation of the
)ccurring.75 Pa.C.S.A.§6308(
Motor Vehicle Code is ( b); see Commonwealth v. Smith,
2007 PA Super. 25, 917 A.2d 848 ;see also Chase, 960 A.2d 108; Commonwealth v.
Holmes, 609 Pa. 1, 14 2•..3d 89 (2011).
6, "[A] vehicle stop based solely on reasonable suspicion of amotor vehicle violation ``must
serve astated investigat ory purpose."' Commonwealth v. Bozeman, 2019 PA Super. 70,
205 A.3d 1264, 1270, appeal denied, 217 A.3d 809 (Pa. 2019).
7. A determination of reas onable suspicion is reached by aCourt by looking at the totality
of the circumstances an ddetermining if there are facts to support areasonable belief that
the law is being broken See Smith, 917 A.2d 848; Holmes, 14 A.3d 89; Commonwealth
v. Fulton, 2007 PA Super. 97, 921 A.2d 1239.
8. ' A]n officer must be able to point to specific and articulable facts which led him to
reasonably suspect aviolation of the Motor Vehicle Code." Holmes, 14 A.3d at 96.
9. "Reasonable suspicion sufficient to stop amotorist must be viewed from the standpoint
of an objectively reaso able police officer." Chase, 960 AN at 120 (citing Ornelas V.
United States, 517 U.``. 690, 696, 11 -6S.Ct. 1657 (1996)).
3
Appendix "B-2"
10. "[C]ourts must also afford due weight to the specific, reasonable inferences drawn from
the facts in light of the cfficer's experience and acknowledge that innocent facts, when
considered collectively, may permit the investigative detention." Holmes, 14 A.3d at 95--
96 (citing Commonivea, 'th v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999)}.
Discussion
Suppression of evidence is governed by Pennsylvania Rule of Criminal Procedure 581,
which permits aDefendant to rr lake amotion "to suppress any evidence alleged to have been
obtained in violation of the defe ;ndanf srights." Pa.R.Crim.P. 581. Defendant asserts at the time
the traffic stop was initiated, Of 'ficer Scharf lacked probable cause to believe Defendant had
violated 75 Pa.C.S.A. §3309 (D riving on Roadways Laned for Traffic). Defendant claims where
avehicle is driven outside the 1< me of traffic for just amomentary period of time and in aminor
manner, atraffic stop is unwarr anted. After reviewing the evidence and testimony under the
totality of the circumstances, t sCourt finds Officer Scharf had probable cause to initiate a
traffic stop of Defendant for vi lation of 75 Pa.C.S.A. §3309 and also had areasonable suspicion
to initiate atraffic stop for Driving Under the Influence.
Police officers may con luct avehicle stop when they possess probable cause that atraffic
violation has occurred. Chase, X60 A.2d at 113. The Commonwealth has the burden of proving
by apreponderance of the evil ,nce the vehicle stop of Defendant was accompanied by probable
cause. See Galendez, supra. A >reponderance of the evidence standard is met when the
Commonwealth has proven it i; more likely than not the acquired evidence was obtained legally.
Id. "Probable cause... is determined by the totality of the circumstances." 1'd. at 1046. Included
in the Court's consideration of the totality of the circumstances are "the facts and circumstances
4
Appendix "B-3"
within the police officer's knowledge and of which the officer has reasonably trustworthy
information..." Id.
Here, the Commonweal hestablished probable cause by apreponderance of the evidence
through Officer Scharf stesfimDny and his patrol vehicle's dashboard camera video of the
incident. Officer Scharf testifie Ihe observed Defendant's vehicle cross over the fog line by three
or four feet twice in less than amile. The dash-cam video shows Defendant's vehicle cross the
fog line on four separate occasi ns, The video also shows anumber of vehicles driving by on the
Toad before and during the traf cstop as well as aPennDOT sign about three or four feet off the
fog line on the shoulder, of the ioad, which Defendant passed. Section 3309(1) of the Motor
Vehicle Code states "[a] vehicle shall be driven as nearly as practicable entirely within asingle
lane..." 75 Pa,C.S.A. §3309. Eased on the totality of the circumstances, Officer Scharf had
probable cause to believe Defendant violated 75 Pa.C.S.A. §3309. Given that Officer Scharf had
probable cause to believe avio ation of the Motor Vehicle Code had occurred, his initiation of a
traffic stop of Defendant was not unconstitutional and evidence obtained as aresult of the stop
will not be suppressed..
Even if the Commonwealth had failed to establish the probable cause needed for a75
Pa.C,S.A. §3309(1) traffic stop Officer Scharf had reasonable suspicion to conduct astop of
Defendant for Driving Under teInfluence. Police officers may conduct atraffic stop if they
have reasonable suspicion to s spect that aviolation of the Motor Vehicle Code is occurring. 75
Pa.C,S.A. §6308(b); see Smith, 917 A.2d 848; Chase, 960 A.2d 108; Holmes, 14 A.3d 89
(2011). According to Section 69 08(b), "a vehicle stop based solely on reasonable suspicion of a
motor vehicle violation ``must •erve astated investigatory purpose"' relevant to the suspected
5
Appendix "B-4
violation. Bozeman, 205 A.3d: t1270; see also Commonwealth v. Feczko, 2010 PA Super 239,
10 A..3d 1285, 1291, "
Reasonable suspicion is determined by looking at the totality of the circumstances and
determining if there are facts to support areasonable belief that the law is being broken. See
Smith, 917 A.2d 848; Holmes, 14 A.3d 89; Fulton, 921 A.2d 1239. An officer making astop
oust be able to identify "specific and articulable facts which led
based on reasonable suspicion i
him to reasonably suspect aviolation of the Motor Vehicle Code." .Holmes, 14 A.3d at 96.
Reasonable suspicion "must be viewed from the standpoint of an objectively reasonable police
officer." Chase, 960 A.2d at K.0 (citing Ornelas, 517 U.S. at 696). Due weight must be given to
"the specific, reasonable infere: ;ices drawn from the facts in light of the officer's experience..."
Holmes, 14 A.3d at 95-96 (c ti ng Cook, 735 A.2d at 676).
Mere, the Commonwe th established by apreponderance of the evidence that Officer
Scharf had reasonable suspicion to initiate atraffic stop to investigate whether Defendant was
Driving Under the Influence. In his testimony, Officer Scharf stated he observed Defendant's
vehicle traveling visibly fast in;comparison to the approximate speed of other vehicles on the
same street. After Officer Scha fbegan following Defendant's vehicle, he observed Defendant's
vehicle weave in its lane'and coss the fog line by three or four feet twice. The dash-cam video
confirms Officer Scharfs testi ony and shows Defendant's vehicle cross the fog line as many as
four times. When viewed fro the standpoint of an objectively reasonable officer, Defendant's
speed, weaving, and repeated rossing of the fog line, along with the time of night (2:00 a.m.),
are specific and articulable fac swhich establish reasonable suspicion. After reviewing the
evidence presented by the part es under the totality of the circumstances, there was sufficient
reasonable suspicion to initiat atraffic stop of Defendant for Driving Under the Influence.
6
Appendix "B-5"
ORDER
AND NOW,this •1 ay of June, 2020, Defendant '
sMotion to Suppress Evidence is
DENIED.
BY THE COURT,
Pamela A. Ruest,President Judge
Appendix "B-6"