Com. v. Johnson, T.

J-A03003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TRAVELLE JOHNSON
Appellee No. 907 MDA 2016
Appeal from the Order Entered May 6, 2016
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0000454-2016
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
DISSENTING MEMORANDUM BY STABILE, J.: FILED AUGUST 02, 2017
While I agree with the Majority that the Appellee did not waive his
claim challenging the legality of the traffic stop, I respectfully dissent
because the Majority incorrectly concludes that Trooper Kaczor did not have
probable cause to stop Appellee’s vehicle for exceeding the posted speed
limit.1 As the trooper possessed probable cause to stop Appellee’s vehicle
for exceeding the posted speed limit, I further would conclude it was
unnecessary to address whether the trooper also possessed probable cause
to stop Appellee’s vehicle for a traffic violation related to driving on
roadways laned for traffic.2
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1
75 Pa.C.S.A. § 3362(a)(2).
2
75 Pa.C.S.A. § 3309(1).
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After a hearing on Appellee’s omnibus motion, the suppression court
found that “[Appellee] was clocked by Trooper Kaczor traveling 70 miles per
hour in a 55 mile per hour zone.” Suppression Court Opinion, 5/6/16, at 5.
On cross-examination, Trooper Kaczor testified that he, at that time, did not
have a certificate showing his speedometer was calibrated and tested;
however, he testified that it was certified on May 13, 2015. 3 N.T.
Suppression Hearing, 5/4/16, at 11-12. Trooper Kaczor further testified that
he followed Appellee for approximately four miles in a 55 mph zone and
clocked him at 70 mph. Suppression Court Opinion, 5/6/16, at 5; N.T.
Suppression Hearing, 5/4/16, at 11-12.
The Motor Vehicle Code provides that police officers may use a
speedometer to capture the rate of speed of another vehicle in support of a
conviction for speeding. 75 Pa.C.S.A. § 3368(a). “In ascertaining the
speed of a vehicle by the use of a speedometer, the speed shall be timed for
a distance of not less than three-tenths of a mile.” Id.
To sustain a conviction for speeding, the Commonwealth must
show beyond a reasonable doubt that: (1) an accused was
driving in excess of the speed limit; (2) the speed timing device
was approved by the Department of Transportation; and (3) the
device was calibrated and tested for accuracy within the
prescribed time period by a station which has been approved by
the department.
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3
The traffic stop occurred some 6 months later on November 5, 2015.
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Commonwealth v. Kaufman, 849 A.2d 1258, 1259 (Pa. Super. 2004)
(citations omitted). However, while proof of calibration and device accuracy
is necessary to secure a conviction, an officer need only establish probable
cause to stop a vehicle for speeding. See Commonwealth v. Feczko, 10
A.3d 1285, 1290-91 (Pa. Super. 2010) (en banc); Commonwealth v.
Landis, 89 A.3d 694, 702 (Pa. Super. 2014).
Probable cause exists “when the facts and circumstances within the
police officer’s knowledge and of which the officer has reasonable
trustworthy information are sufficient to warrant a person of reasonable
caution in the belief that an offense has been committed based upon a
totality of the circumstances.” Commonwealth v. Salter, 121 A.3d 987
(Pa. Super. 2015) (citing Commonwealth v. Weaver, 76 A.3d 562, 565
(Pa. Super. 2013), aff’d per curiam, 105 A.3d 656 (Pa. 2014) (additional
citation omitted). “Criterion of admissibility into evidence, to prove an
accused’s guilt, should not be applied to the facts relied upon to show
probable cause.” Weaver, 76 A.3d at 567 (citing Brineger v. United
States, 338 U.S. 160, 172 (1949)). If proof beyond a reasonable doubt
necessary for conviction
were to be made applicable in determining probable cause . . .
for search and seizure, more especially in cases such as this
involving moving vehicles used in the commission of crime, few
indeed would be the situations in which an officer, charged with
protecting the public interest by enforcing the law, could ever
take effective action toward that end.
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Weaver, 76 A.3d at 568 (quoting Brinegar, 338 U.S. at 174). “Thus, it is
clear that the rules of evidence governing a trial are inapplicable to a
determination of probable cause.” Id. (citations omitted).
Probable cause was established here when Trooper Kaczor, using the
speedometer in his vehicle, timed Appellee going 70 mph in a 55 mph zone
over a period of 4 miles. The failure to provide proof of timely calibration at
the suppression hearing was irrelevant to the determination of probable
cause. See Commonwealth v. Vincett, 806 A.2d 31, 33 (Pa. Super.
2002) (“the fact that [a defendant] may have a colorable defense to the
underlying traffic violation in no manner affects the validity of the stop.”).
The actual accuracy of the police unit’s speedometer was the wrong inquiry
in determining probable cause. The proper inquiry should have been
whether the trooper reasonably believed his speedometer was accurate to
justify the traffic stop of the Appellee’s vehicle. The “suppression inquiry is
analyzed from the perspective of the officer and not from the perspective of
the defendant.” Id. (citing Commonwealth v. Palmer, 751 A.2d 223 (Pa.
Super. 2000)). Trooper Kaczor’s observation that the Appellee was traveling
70 mph in a 55 mph zone for a distance of approximately 4 miles was
uncontradicted at the suppression hearing and so found by the suppression
court. This clearly was enough to establish the requisite probable cause for
the traffic stop in this case. There is no requirement that an actual Vehicle
Code violation be established. Id.
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The Majority improperly conflates probable cause with the proof
necessary for conviction in concluding that Trooper Kaczor did not possess
the requisite probable cause to stop the Appellee’s vehicle. Accordingly, I
would reverse the trial court and conclude that the suppression court erred
in granting Appellee’s motion to suppress.
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