Com. v. Dixon, C.

J-A19028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLINTON BRUCE DIXON :
:
Appellant : No. 1724 MDA 2017
Appeal from the Judgment of Sentence Entered October 13, 2017
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-SA-0000109-2017
BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 23, 2018
Appellant Clinton Bruce Dixon appeals from the judgment of sentence
entered following his conviction for driving under suspension (DUS).1
Appellant contends that his conviction must be vacated because the arresting
officer lacked probable cause to stop his motor vehicle. We affirm Appellant’s
conviction, but vacate the judgment of sentence and remand for resentencing.
The trial court summarized the relevant facts as follows:
During the early afternoon of February 22, 2017, Officer Katie
Justh of the Lower Allen Township Police Department was flagged
down by an individual who stated that the driver of “what turned
out to be” a maroon Chevy Monte Carlo had participated in a road
rage incident and had threatened to “beat up” the complainant.
The victim of the threat pointed out the vehicle which was leaving
the scene and Officer Justh gave chase. N.T.[, 10/13/17 at] 3. On
cross examination, the Officer explained in greater detail how it
was that she came to stop [Appellant’]s vehicle:
____________________________________________
1 75 Pa.C.S. § 1543(a). This was Appellant’s sixth DUS conviction.
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A When [the complainant] flagged me down, he was
traveling west on Carlisle Road. I was eastbound. I had just
left our station, he pointed at the car that was traveling
ahead of him, so it was traveling westbound as well on
Carlisle Road and was just rounding the corner of Orchard.
We were literally like a half a block away from where
[Appellant] was rounding the corner because we were on
Carlisle at Lisburn and [Appellant] was on Carlisle at
Orchard.
Q So [the complainant] actually pointed to a vehicle that
you could still see?
A Yes.
Q And then between that time and the time you pulled the
vehicle over, was the vehicle in your sight that entire time?
A Once it rounded the corner, it was out of my sight. Once
I was able to do a U-turn and turn around, then I saw it at
the traffic light. It was stopped at a red light.
Q And how did you identify it as the same vehicle?
A It was the only maroon El Camino, Chevy El Camino in the
area. I’m sorry. Monte Carlo. I apologize, Chevy Monte
Carlo.
Q And then once you approached the vehicle, you initiated
your stop?
A I initiated a traffic stop, and the person that flagged me
down pulled in behind me and also indicated to me that that
was the correct vehicle that was the subject.
N.T. [at] 7-8.
Trial Ct. Op., 12/6/17, at 1-2.
After stopping the subject vehicle, Officer Justh approached the driver,
Appellant, who was the only person in the vehicle. The officer asked for
Appellant’s license, registration, and insurance, and Appellant provided her
with a Pennsylvania driver’s license. The officer obtained a Pennsylvania
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Department of Transportation report indicating that Appellant’s license was
suspended. The office issued Appellant’s citations for disorderly conduct and
DUS.
On May 17, 2017, a magisterial district court found Appellant guilty of
disorderly conduct and DUS. Appellant timely appealed to the court of
common pleas.
The trial court held a trial de novo on October 13, 2017. The
complainant did not appear, and the Commonwealth elected to proceed only
on the DUS charge. Officer Justh testified regarding the traffic stop and her
investigation into the suspension of Appellant’s operating privileges. Appellant
did not testify. In closing arguments, Appellant’s counsel asserted that the
DUS charge should be dismissed because Officer Justh lacked probable cause
to stop Appellant.2 The court concluded that there was a reasonable basis for
the stop. The court found Appellant guilty of DUS and not guilty of disorderly
conduct. That same day, the trial court sentenced Appellant to serve thirty
days’ imprisonment for DUS and to pay fines and costs.
Appellant timely appealed and complied with the trial court’s order to
submit a Pa.R.A.P. 1925(b) statement. The trial court filed a responsive
opinion.
____________________________________________
2 Although Appellant raised his suppression issue for the first time after the
close of evidence at the trial de novo, we decline to find waiver because the
Commonwealth did not object and the trial court specifically ruled on the
suppression issue. See Commonwealth v. Downey, 39 A.3d 401, 404 (Pa.
Super. 2012).
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Appellant presents the following question on appeal:
Did the [trial] court make an error of law in denying Appellant’s
motion to dismiss the citation where the police had neither
reasonable suspicion nor probable cause to stop [Appellant]’s
vehicle?
Appellant’s Brief at 5.
Appellant claims that the trial court erred in rejecting his motion to
dismiss the charge based on an unconstitutional stop. In support, Appellant
argues:
In the present matter, the entirety of the evidence presented with
respect to [Appellant’s] conduct, which was the sole basis for the
vehicle stop, was that “he had threatened to beat [another
motorist] up.”[] There was no testimony regarding “the
circumstances surrounding [those] words,” which can be “crucial,”
and the totality of the circumstances consisted entirely of that one
statement. Yet, Disorderly Conduct requires that an individual
“cause or unjustifiably risk a public disturbance,” Without
evidence establishing that [Appellant] either caused or
unjustifiably risked a public disturbance, the [trial] court could not
have found facts “sufficient to warrant a man of reasonable
caution in the belief that an offense has been or is being
committed.” Nor could the [trial] court, with such a paucity of
evidence, have engaged in a “highly fact-sensitive inquiry” to
determine whether probable cause to stop [Appellant’s] vehicle
was present.
Id. at 13.
It is well-settled that
[t]he standard and scope of review for a challenge to the denial
of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing rulings of a
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
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a whole. Where the record supports findings of the suppression
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Leonard, 951 A.2d 393, 396 (Pa. Super. 2008) (citation
omitted).
A police officer may stop a vehicle for investigatory purposes where
there is reasonable suspicion to believe that criminal activity is afoot.
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en
banc). To establish a reasonable suspicion, “the police need not establish their
suspicions to a level of certainty, a preponderance, or even a fair probability.
. . . [T]he requisite quantum of suspicion necessary to conduct an
investigatory stop is a level ‘obviously less demanding than for probable
cause.’” Commonwealth v. Epps, 608 A.2d 1095, 1096 (Pa. Super. 1992).
The inquiry into whether reasonable suspicion exists is an objective one.
Commonwealth v. Haines, 166 A.3d 449, 457 (Pa. Super. 2017). We
review “the totality of the circumstances, including such factors as ‘tips, the
reliability of the informants, time, location, and suspicious activity[]’” to
determine whether “the facts available to the officer at the moment of the
intrusion warrant a man of reasonable caution in the belief that the action
taken was appropriate.” Id. (citations omitted). Moreover, a report made to
an officer in person “must be given more weight than a mere anonymous
phone call.” Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super.
2009) (indicating that an in-person report provides an officer to observe the
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demeanor and assess the credibility of the reporter and subjects the reporter
to liability for giving false information).
The trial court, in its Rule 1925(a) opinion, reviewed the relevant law
regarding reasonable suspicion and the reliability of tips from a known
informant. The court concluded:
In this case, the identity of the motorist who flagged down Officer
Justh obviously became known to the police. The complaining
witness described the incident that had just occurred and the
threat which had been made by [Appellant]. There was nothing
about the circumstances which indicated that the complainant was
being untruthful or, in any event, detracted from the need to
investigate further. The incident involved one or more violations
of criminal law, albeit summary offenses.[] The evidence makes it
clear that the vehicle, ultimately stopped by Officer Justh, was the
same vehicle whose driver had engaged in the road rage incident.
Not only was the stop of the [Appellant’s] vehicle justified in this
case, but the officer’s failure to have done so would have been a
dereliction of duty.
Trial Ct. Op. at 4.
Following our review, we discern no basis to disturb the trial court’s
analysis of Appellant’s suppression claim. Appellant’s argument that the
description of alleged threat was too vague to establish all elements of a
particular offense, warrants no relief as an officer need not establish the
required suspicion to a level of certainty that an offense has been in fact
committed. See Epps, 608 A.2d at 1096. Accordingly, we agree with the
trial court that the officer possessed reasonable suspicion to stop Appellant’s
vehicle and investigate the complainant’s report of threatening behavior.
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However, we must address the legality of the trial court’s flat sentence
of thirty days’ imprisonment for DUS as a sixth offense. “[C]hallenges to an
illegal sentence . . . may be reviewed sua sponte by this Court. An illegal
sentence must be vacated.” Commonwealth v. Tanner, 61 A.3d 1043, 1046
(Pa. Super. 2013) (citations and quotation marks omitted). “Our scope of
review of challenges to the legality of a sentence is plenary, and the standard
of review is de novo.” Commonwealth v. Postie, 110 A.3d 1034, 1043 (Pa.
Super. 2015).
In Postie, this Court held that 75 Pa.C.S. § 6503(a.1), which governs
the sentence for a person convicted of a sixth or subsequent DUS offense,
requires that the trial court impose a minimum and maximum sentence. Id.
at 1045. Therefore, we are constrained to conclude that Appellant’s flat
sentence of thirty days of imprisonment is illegal, and we remand for
resentencing. See Tanner, 61 A.3d at 1047.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2018
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