Com. v. Varner, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOEL WESLEY VARNER :
:
Appellant : No. 271 WDA 2022
Appeal from the Judgment of Sentence Entered January 21, 2022
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0000665-2020
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED: OCTOBER 24, 2022
Appellant, Joel Wesley Varner, appeals from the January 21, 2022
Judgment of Sentence entered in the Indiana County Court of Common Pleas
following his non-jury trial conviction of one count each of DUI: General
Impairment, DUI: Highest Rate of Alcohol, Disregarding Traffic Lane, and
Careless Driving.1 Appellant challenges the trial court’s denial of his pretrial
motion to suppress. After careful review, we affirm.
The relevant facts and procedural history are as follows. On December
28, 2019, Dominick Reed called the Pennsylvania State Police (“PSP”),
identified himself,2 and reported the erratic driving of an older-model, square-
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3802(a)(1), 3802(c), 3309(1), and 3714(a), respectively.
2In addition, Mr. Reed provided the dispatcher with his then-current phone
number and home address.
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body, white, lifted, Ford pick-up truck with marker lights and white vinyl decals
on the rear windshield. Mr. Reed described the truck as swerving all over the
road, travelling at various speeds, and stopping in the middle of the roadway
at various times. Mr. Reed indicated that he had last seen the truck in the
vicinity of Claghorn and Longs Roads in Brush Valley Township.
In response to the erratic driving report, the PSP dispatched Trooper
Eric Smith to Longs Road. About 10 minutes later, Trooper Smith observed a
truck matching the description provided by Mr. Reed in the vicinity, on
Claghorn Road. Trooper Smith effectuated a traffic stop following which he
determined that Appellant was driving the truck while intoxicated. As a result,
the Commonwealth charged Appellant with the above crimes.
On March 8, 2021, Appellant filed an Omnibus Pretrial Motion to
Suppress Evidence contending that the traffic stop that led to his arrest was
illegal. In particular, Appellant asserted that “Trooper Smith lacked the
requisite probable cause and/or reasonable suspicion to conduct a lawful
seizure of [Appellant’s] vehicle which was otherwise legally on the roadway at
the time of the stop.” Motion to Suppress, 3/8/21, at 2.
On April 21, 2021, the trial court held a hearing on Appellant’s motion
to suppress at which Dominic Reed, Jeffrey Johnson, a private investigator
retained by Appellant, and Trooper Smith testified to the above facts. Trooper
Smith also described the place on Claghorn Road where he met Appellant as
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“dirt, gravel, very tight, and there’s a switchback in the middle.” 3 He
explained that, because the road is so narrow, as he approached Appellant,
Appellant’s vehicle was “head-on” with his and both vehicles stopped in the
middle of the roadway. Appellant then backed up into the brush so that
Trooper Smith’s vehicle could pass him. Trooper Smith testified that he
thought the truck’s driver’s “response to reacting to another vehicle in the
roadway” seemed “slow[.]”4 Trooper Smith explained next that the truck’s
passenger rolled down his window and waved Trooper Smith by. Trooper
Smith then stopped the vehicle to investigate further. He testified that, as he
approached Appellant’s vehicle, he “detected a strong odor of an alcoholic
beverage” and Appellant “reported that he was coming home after having a
couple [of] drinks at the bar.”5 Trooper Smith further testified that he did not
observe Appellant driving erratically or violating the Motor Vehicle Code. He
testified however, that when he received the dispatch reporting Appellant’s
erratic driving, based on his experience and training his immediate thoughts
and concerns were that Appellant was impaired and that he posed a risk to
the safety of other motorists on the road.
Mr. Reed testified that when he first came upon Appellant on the night
in question, he was travelling west on Route 22 towards Armagh. Mr. Reed
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3 N.T. Suppression, 4/21/21, at 12.
4 Id.
5 Id. at 14.
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testified that Appellant “pulled out and went across the median . . . driving
erratically and swerving all over the road.”6 He explained that, as he
attempted to pass Appellant’s truck, the occupants “started throwing garbage
and stuff out of [] the truck.”7 He testified that after he passed Appellant,
Appellant followed him, so Mr. Reed pulled over and then Appellant stopped
“door to door with me. I went to go and it was kind of back and forth and
then I did a circle and parked back where I was. . . . At that point the truck
stopped in the middle of the road, put it in reverse and drove backwards
towards me. I had to go in the opposing lane to go around the vehicle”8 Mr.
Reed testified that it was then that he called the PSP. He continued to follow
Appellant’s truck while on the phone with the police. He testified that
Appellant “was driving at a high rate of speed and driving in the opposing
lane” before turning onto Claghorn Road.9
Mr. Reed testified that he no longer lived at the address he provided to
the police dispatcher on the night of Appellant’s arrest, which was his mother’s
house. He also testified that his phone number has changed since the
incident. He confirmed that he was not trying to evade contact from the PSP,
but had merely relocated and not updated his information with the PSP. Mr.
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6 Id. at 25.
7 Id.
8 Id. at 25-26
9 Id. at 26.
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Reed further testified that, contrary to the information provided to Trooper
Smith by the police dispatcher, Mr. Reed did not see Appellant operate his
truck on Longs Road. He explained that he had mentioned Longs Road to the
police dispatcher in the context of his report that Appellant’s vehicle
approached the four-way intersection of Route 56, Claghorn Road, and Longs
Road and that the truck “turned onto Claghorn Road from where Longs Road
meets [Route] 56, and then when you cross, it turns to Claghorn because
Claghorn connects to [Route] 259 as well.”10 Mr. Reed testified that he
observed Appellant driving erratically for a period of 10 to 15 minutes.
In his testimony, Mr. Johnson, Appellant’s private investigator, provided
a detailed description of the nature and conditions of Longs Road. He also
testified that he was unable to confirm from Mr. Reed’s “Comprehensive
Persons Report” that Mr. Reed had ever lived at the address Mr. Reed provided
to the PSP dispatcher.11 He further testified that it is possible for Mr. Reed to
have lived at that address without it appearing on the Comprehensive Persons
Report.
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10 Id. at 33. See also id. at 32 (where Mr. Reed explains that “there is a
four-way intersection . . . There’s 56 and a road comes from your right and
stops at 56. That’s Longs Road. Whenever you cross 56, it turns into
Claghorn”).
11 Mr. Johnson explained that a Comprehensive Persons Report is a “personal
biographical record . . . that shows address history, associates, criminal
records, any bankruptcies . . . any kind of licenses, sometimes a work history.”
Id. at 42.
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On August 9, 2021, the trial court denied Appellant’s motion to
suppress. The court found that Trooper Smith’s contact with Appellant
constituted an investigative motor vehicle stop that required reasonable
suspicion that Appellant was driving under the influence. Order, 8/9/21, at
¶¶ 1-2. The court further found Mr. Reed’s testimony as set forth above
credible. Id. at ¶ 3. The court, thus, concluded that “Trooper Smith
possessed specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warranted” the investigative motor
vehicle stop. Id. at ¶ 4 (citations omitted).
The case proceeded to a bench trial where, on October 25, 2021, the
court convicted Appellant of the above crimes. On January 21, 2022, the trial
court sentenced Appellant to a term of 3 days to 6 months of incarceration in
county jail and a consecutive term of 6 months’ probation. Appellant did not
file a post-sentence motion.
This appeal followed. Appellant complied with the court’s order to file a
Pa.R.A.P. 1925(b) statement. The trial court filed a statement in lieu of a Rule
1925(a) opinion referring this Court to its August 9, 2021 opinion.
Appellant raises the following issue on appeal:
Did the [t]rial [c]ourt err in denying [Appellant’s] Omnibus Pretrial
Motion to Suppress [Evidence] by determining that reasonable
suspicion justified the seizure of Appellant?
Appellant’s Brief at 6.
Appellant challenges the suppression court’s determination that the
traffic stop conducted by Trooper Smith was lawful. Appellant asserts that for
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the stop to be lawful, Trooper Smith needed either reasonable suspicion that
Appellant was operating his vehicle while under the influence or probable
cause that Appellant had committed a moving violation of the Motor Vehicle
Code. He argues that: (1) Mr. Reed’s report to the PSP dispatcher lacked the
necessary indicia of reliability to provide Trooper Smith with reasonable
suspicion sufficient to justify the traffic stop of Appellant; and (2) Trooper
Smith lacked probable cause to charge Appellant with moving violations of the
Motor Vehicle Code.
A.
When we review the denial of a motion to suppress, “we are limited to
considering only the Commonwealth’s evidence and so much of the evidence
for the defense as remains uncontradicted when read in the context of the
record as a whole.” Commonwealth v. Yorgey, 188 A.3d 1190, 1198 (Pa.
Super. 2018) (en banc) (citation and internal quotation marks omitted). When
the testimony and other evidence support the trial court’s findings of fact, this
Court is bound by them and we “may reverse only if the court erred in reaching
its legal conclusions based upon the facts.” Id. (citation omitted). “Moreover,
it is within the lower court’s province to pass on the credibility of witnesses
and determine the weight to be given to their testimony.” Commonwealth
v. McCoy, 154 A.3d 813, 816 (Pa. Super. 2017). This Court will not disturb
a suppression court’s credibility determination absent a clear and manifest
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error. Commonwealth v. Camacho, 625 A.2d 1242, 1245 (Pa. Super.
1993).
“The scope of review from a suppression ruling is limited to the
evidentiary record created at the suppression hearing.” Commonwealth v.
Neal, 151 A.3d 1068, 1071 (Pa. Super. 2016). Importantly, “[o]nce a motion
to suppress evidence has been filed, it is the Commonwealth’s burden to
prove, by a preponderance of the evidence, that the challenged evidence was
not obtained in violation of the defendant’s rights.” Commonwealth v.
Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012) (citing Pa.R.Crim.P. 581(H)).
B.
Appellant claims the suppression court erred as a matter of law in
determining that Trooper Smith had the requisite reasonable suspicion to
justify the traffic stop. Appellant’s Brief at 20-26. He argues that Mr. Reed’s
report to police dispatch lacked the required specificity and credibility
sufficient to justify Appellant’s seizure. Id. In support of his argument,
Appellant asserts that the PSP received “only somewhat vague information of
alleged swerving and stopping” from Mr. Reed and, “Trooper Smith never
corroborated [Mr. Reed’s] information or received any personal observations
of the driver or specific indications of intoxication.” Id. at 21-22. Appellant
also posits that “Trooper Smith had no manner of determining if the passenger
and driver switched seats on Claghorn Road when the vehicle was stopped.”
Id. at 22. He concludes that the only fact reported by Mr. Reed that Trooper
Smith could corroborate—Appellant’s presence on Claghorn Road—was not
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sufficient to establish reasonable suspicion to justify the traffic stop. Id. at
23.
Appellant also assails the suppression court’s conclusion that Mr. Reed
was credible. Id. at 24. He claims that because Mr. Reed did not appear at
Appellant’s preliminary hearing, provided police with an address different from
his current address, has a different phone number than he did in 2019, and
because detectives from the District Attorney’s office had to search for Mr.
Reed in order for him to testify at the suppression hearing, “[t]here is a distinct
possibility that Mr. Reed did not intend to furnish the police with a reliable
number and current home address.” Id. at 24, 26. Last, Appellant argues
that Mr. Reed’s tip was not credible because Mr. Reed’s testimony at the
suppression hearing described his observation of a “road rage incident” but
the PSP dispatch report to Trooper Smith lacked this “seemingly pertinent
information” and because Trooper Smith located Appellant on Claghorn Road
and not Longs Road. Id. at 25.
The law of this Commonwealth provides that “a police officer may stop
a vehicle if he or she has reasonable suspicion to believe that the occupants
were involved in criminal activity.” Commonwealth v. Sands, 887 A.2d 261,
269 (Pa. Super. 2005). “The determination of whether an officer had
reasonable suspicion that criminality was afoot so as to justify an investigatory
detention is an objective one, which must be considered in light of the totality
of the circumstances.” Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa.
2011). As such, “[i]t is the duty of the suppression court to independently
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evaluate whether, under the particular facts of a case, an objectively
reasonable police officer would have reasonably suspected criminal activity
was afoot.” Id.When considering the totality of the circumstances to determine
whether reasonable suspicion exists, it is important to “note that police officers
need not personally observe the illegal or suspicious conduct which led them
to believe that criminal activity [was] afoot.” Commonwealth v. Wright,
672 A.2d 826, 830 (Pa. Super. 1996). Instead, officers “may rely upon the
information of third parties, including ‘tips’ from citizens.” Commonwealth
v. Lohr, 715 A.2d 459, 461 (Pa. Super. 1998).
Furthermore, “courts must also afford due weight to the specific,
reasonable inferences drawn from the facts in light of the officer’s experience
and acknowledge that innocent facts, when considered collectively, may
permit the investigative detention.” Holmes, 14 A.3d at 95 (citing
Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999)). Importantly,
“reasonable suspicion does not require that the activity in question must be
unquestionably criminal before an officer may investigate further.”
Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (quoting
Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa. 2004)). Instead, “it
requires a suspicion of criminal conduct that is reasonable based upon the
facts of the matter[,]” and “[p]otential innocent explanations for [a
defendant’s] conduct do not negate the reasonableness of [an officer’s]
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suspicion of criminal activity[.]” Id. (quoting Rogers, 849 A.2d at 1190)
(emphasis omitted).
We presume that identified citizens who report their observations of
criminal activity to police are trustworthy. Commonwealth v. Barber, 889
A.2d 587, 593. (Pa. Super. 2005). Nevertheless, “[w]hen an identified third
party provides information to the police, [the court] must examine the
specificity and reliability of the information provided.” Commonwealth v.
Korenkiewicz, 743 A.2d 958, 964 (Pa. Super. 1999). In such cases, “[t]he
information supplied by the informant must be specific enough to support
reasonable suspicion that criminal activity is occurring.” Id. Accordingly, in
order “[t]o determine whether the information provided is sufficient, we
assess the information under the totality of the circumstances.” Id. “The
informer’s reliability, veracity, and basis of knowledge are all relevant factors
in this analysis.” Id.Appellant asserts that the suppression court erred in finding that Mr.
Reed’s tip to the PSP dispatcher was credible and specific enough to support
Trooper Smith’s reasonable suspicion. Based on our review, we disagree. Mr.
Reed testified extensively and in detail about the basis of his knowledge of
Appellant’s erratic driving, explained the discrepancies between his
observations on the night in question and the PSP report received by Trooper
Smith, and explained the reason that the Commonwealth did not have his
current address and phone number. Appellant essentially asks this Court to
make its own determination as to Mr. Reed’s credibility, which, as noted
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above, we cannot and will not do. See Camacho, 625 A.2d at 1245. In
addition, Mr. Reed’s tip to the PSP dispatcher providing a detailed description
of Appellant’s vehicle as an older-model, square-body, white, lifted, Ford pick-
up truck with marker lights and white vinyl decals on the rear windshield
proved reliable when Trooper Smith found the vehicle in the location described
by Mr. Reed.
Following our review, we conclude that the record supports the
suppression court’s findings of fact, and the trial court properly denied
Appellant’s motion to suppress. The totality of the evidence presented at the
suppression hearing, namely Mr. Reed’s detailed account of Appellant’s erratic
driving and accurate description of Appellant’s vehicle and its location, coupled
with the reasonable inferences of intoxication Trooper Smith drew from the
facts in light of his experience, were sufficient to justify Officer Smith’s
reasonable suspicion that Appellant was engaging in criminal activity.
Appellant’s claim, thus, fails.12
Judgment of Sentence affirmed.
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12In light of our conclusion that Trooper Smith had reasonable suspicion to
conduct the traffic stop, we need not address Appellant’s alternate argument
that Trooper Smith lacked probable cause to conduct the traffic stop because
Trooper Smith did not personally observe Appellant violate Sections 3309 and
3714 of the Motor Vehicle Code.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2022
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