Com. v. Sikora, A.

J-A08025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDREW DAVID SIKORA, JR.
Appellant No. 1532 EDA 2015
Appeal from the Judgment of Sentence April 24, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003780-2014
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY BOWES, J.: FILED AUGUST 22, 2016
I agree with my distinguished colleagues that the trial court incorrectly
applied the reasonable suspicion standard to assess the validity of the traffic
stop. However, I believe that the officer possessed probable cause to stop
Appellant for driving at an unsafe speed. Since all issues on appeal relate to
the validity of the traffic stop, I would therefore affirm judgment of
sentence.
I respectfully disagree with my colleague’s recitation of the facts. The
trial court’s opinion states, “Officer Fusco heard the car’s engine rev. Officer
Fusco looked in his side view mirror and saw the car’s taillights travelling
away from him at a high rate of speed.” Trial Court Opinion, 7/23/15, at 6.
Compare these findings to the majority’s memorandum, which states:
* Retired Senior Judge assigned to the Superior Court.
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Officer Fusco did not testify as to what effect Appellant’s surging
of the engine had on the speed of the vehicle he was driving.
At the suppression hearing Officer Fusco only testified to hearing
the engine surge and seeing Appellant’s taillights pulling away,
and without any support, he made the conclusory statement that
Appellant was traveling away from him at a high rate of speed.
N.T., 3/10/15, at 9. Officer Fusco saw Appellant’s taillights in his
side mirror. Officer Fusco merely caught a brief glimpse of the
taillights proceeding in the opposite direction. Thus, Appellant’s
surging of the engine was insufficient to give Officer Fusco
probable cause.
Majority’s memorandum at 8 (emphasis in original, footnote omitted). This
factual recitation is contradicted by the record. Officer Fusco stated he saw
the vehicle “go in the opposite direction at a high rate of speed.” N.T.
Suppression, 3/20/15, at 9. Therefore, the officer did in fact know what
happened when Appellant revved the engine: the vehicle suddenly
accelerated and reached a high rate of speed. The trial court credited the
officer’s testimony in its opinion, and, since that finding is clearly supported
by the record, we are bound by it.
The majority disagrees with this finding by stating Officer Fusco’s
testimony is conclusory and lacks support. By way of contradiction, the
majority notes that the only evidence of record to establish the vehicle’s
speed came from Appellant’s expert. The trial court found that the Corvette
accelerated to fourteen mph, but only up to the point “when it went out of
view on the MVR video just prior to the acceleration (rev’ing) being heard.”
Trial Court Opinion, 7/23/15, at 7 (citing N.T. Suppression, 3/20/15, at 62).
This finding was based on the expert’s opinion that Appellant accelerated
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from six mph to fourteen mph as he passed the officer’s vehicle. N.T.
Suppression, 3/20/15, at 62. That finding obviously says nothing about
what speed Appellant reached after passing the officer’s vehicle, which is
when the engine surge occurred. Indeed, the expert conceded that he did
not know how fast Appellant went as a result of that acceleration. Id. at 61-
62. Moreover, the expert based his conclusions on normal, not rapid,
acceleration.1 Id. at 64.
Thus, the expert’s finding says nothing about what speed Appellant
reached upon revving the engine and suddenly accelerating. Therefore, the
testimony of the police officer, which the trial court credited, establishes that
Appellant proceeded at a high rate of speed.
“Where the record supports the factual findings of the trial court, the
appellate court is bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.” Commonwealth v. Tam Thanh
Nguyen, 116 A.3d 657, 663-64 (Pa.Super. 2015) (citations omitted).
Clearly, the majority cannot discredit the officer’s testimony. Therefore, this
finding must be accepted. I take the majority’s position to be that the
officer’s observation of the high rate of speed cannot establish probable
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1
The vehicle in question was a Corvette; the record does not indicate year
or model, and the report makes no mention of examining the actual engine
in question. I do not think it is controversial to state that a Corvette, as a
sports car, is generally capable of rapid acceleration.
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cause. The majority’s criticism is more properly directed to whether Officer
Fusco’s observation would be sufficient for purposes of proving the violation
beyond a reasonable doubt. However, we are not answering that question.
“[Probable cause] is not the same ‘beyond-a-reasonable-doubt’ standard
which we apply in determining guilt or innocence at trial.” Commonwealth
v. Evans, 661 A.2d 881, 885 (Pa.Super. 1995) (quoting Commonwealth v.
Simmons, 440 A.2d 1228, 1234 (Pa.Super. 1982)). Officer Fusco’s
testimony, as credited by the fact-finder, is sufficient to establish Appellant
accelerated to a high rate of speed for purposes of probable cause. 2
Analyzing the legal inquiry in light of the facts as found by the trial
court, I would hold that probable cause existed to warrant a traffic stop for
driving at an unsafe speed. The statute reads:
No person shall drive a vehicle at a speed greater than is
reasonable and prudent under the conditions and having regard
to the actual and potential hazards then existing, nor at a speed
greater than will permit the driver to bring his vehicle to a stop
within the assured clear distance ahead. Consistent with the
foregoing, every person shall drive at a safe and appropriate
speed when approaching and crossing an intersection or railroad
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2
I believe the majority places too much emphasis on the officer’s inability
to accurately estimate the speed Appellant reached after the engine surge.
In my view, the officer had probable cause, at minimum, to stop the vehicle
and issue a written warning based on the observed conduct. “And, as noted
by the trial court, an officer need not stop a vehicle only where he or she
intends to issue a citation, but can effectuate a stop solely for purposes of
issuing the driver a warning.” Commonwealth v. Benton, 655 A.2d 1030,
1033 (Pa.Super. 1995) (citing Commonwealth v. Fisher, 440 A.2d 570,
572 (Pa.Super. 1982)).
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grade crossing, when approaching and going around curve, when
approaching a hill crest, when traveling upon any narrow or
winding roadway and when special hazards exist with respect to
pedestrians or other traffic or by reason of weather or highway
conditions.
75 Pa.C.S. § 3361.
“Probable cause exists where the facts and circumstances within the
officers’ knowledge are sufficient to warrant a person of reasonable caution
in the belief that an offense has been or is being committed.”
Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (citation omitted).
Whether the facts and circumstances amount to probable cause is a question
of law. Commonwealth v. Newman, 84 A.3d 1072, 1080 (Pa.Super.
2014). In making this determination, we consider
all the factors and their total effect, and do not concentrate on
each individual element. . . . We also focus on the
circumstances as seen through the eyes of the trained officer,
and do not view the situation as an average citizen might. . . .
Finally, we must remember that in dealing with questions of
probable cause, we are not dealing with certainties. We are
dealing with the factual and practical considerations of everyday
life on which reasonable and prudent men act. l.
Evans, supra at 884-85 (Pa.Super. 1995) (citations omitted).
We set forth in Commonwealth v. Heberling, 678 A.2d 794
(Pa.Super. 1996), that the statute in question embodies two general and
alternate types of conduct that constitute a violation: (1) driving at a speed
greater than is reasonable and prudent under the conditions and having
regard to the actual and potential hazards then existing; or (2) driving at a
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speed greater than will permit the driver to bring the vehicle to a stop within
the assured clear distance ahead. Id. at 795. The second category does
not apply to these facts. It is also clear that Appellant was not approaching
an intersection or railroad grade crossing, a curve, hill crest, nor was he on a
narrow or winding roadway. However, the language “when special hazards
exist with respect to pedestrians” is part of a catchall category. Id.
Herein, I would find Appellant’s high rate of speed was neither
reasonable nor prudent due to a special hazard existing with respect to
pedestrians. Officer Fusco testified that this incident occurred at
approximately 2:00 a.m. when businesses in the area were closing and
patrons were exiting. Officer Fusco observed several pedestrians in the
immediate area. N.T. Suppression, 3/20/15, at 39-40. Officer Fusco
testified it was not uncommon for pedestrians to be visibly intoxicated and
walking in this area at this time of night. Id. at 8.
In my view, that Appellant was traveling at a slow pace when he
passed Officer Fusco’s vehicle supports the conclusion that Appellant’s
driving was unsafe for the conditions. Jaywalking pedestrians seeking to
cross a street rely on an assumption that approaching vehicles will not
suddenly accelerate. Rapid acceleration, as opposed to a gradual build-up of
speed, presents far more danger to a pedestrian seeking to cross the street,
especially when many of those pedestrians are likely to be impaired and not
in full control of their movements. In this regard, Appellant cites
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Commonwealth v. Perry, 982 A.2d 1009, 1012 (Pa.Super. 2009), for the
proposition that a driver has no duty to yield to a pedestrian on a sidewalk.
Therein, the trial court specifically found that a driver failed to yield to a
pedestrian. Perry simply stated that this particular finding was not
supported since the record indicated the pedestrian was on the sidewalk, not
the crosswalk. Id. This does not mean that a court, in assessing whether a
hazard existed, cannot consider the presence of pedestrians. Such a reading
is flatly contradicted by the plain text of the statute.
Bearing in mind that we are reviewing only whether probable cause
justified the stop, I would hold that, under these facts, the officer possessed
probable cause to believe that Appellant’s sudden acceleration to a high rate
of speed in the presence of the pedestrians constituted a violation of the
Vehicle Code. While the trial court applied the incorrect standard of
reasonable suspicion, we may affirm on any basis. Commonwealth v.
Moser, 999 A.2d 602, 606, n.5 (Pa.Super. 2010). I would therefore affirm
the judgment of sentence.
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