Com. v. Hollowell, S.

• Court: Superior Court of Pennsylvania
• Decided: February 18, 2015
• Docket: 740 WDA 2014
• Status: Unpublished

Opinion

J-A01028-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : SUSAN LYNNE HOLLOWELL, : : Appellant : No. 740 WDA 2014

Appeal from the Judgment of Sentence April 8, 2014, Court of Common Pleas, Mercer County, Criminal Division at No. CP-43-CR-0001316-2013

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 18, 2015

Susan Lynne Hollowell (“Hollowell”) appeals from the judgment of

sentence entered on April 8, 2014 by the Court of Common Pleas of Mercer

County, Criminal Division, following her conviction of driving under the

influence of alcohol (“DUI”), highest rate of alcohol.1 For the reasons that

follow, we affirm.

The relevant facts and procedural history of this case are summarized

as follows. On July 19, 2013, at approximately 12:23 a.m., Officer Andreu

Foriska (“Officer Foriska”) of the Southwest Mercer County Regional Police

Department was on a patrol when he observed Hollowell’s vehicle, a dark

Pontiac Sunfire, traveling eastbound on Broadway Avenue in Shenango

Township. At the intersection of Broadway Avenue and New Castle Road,

1 75 Pa.C.S.A. § 3802(c). J-A01028-15

Officer Foriska observed Hollowell activate her right turn signal prior to

making a right-hand turn onto the southbound on-ramp to New Castle Road.

Officer Foriska testified that the right rear turn signal was flashing faster

than a normal operating turn signal. Although he did not know the exact

rate at which Hollowell’s right rear turn signal was flashing, Officer Foriska

estimated that it was flashing at a rate of 120 times per minute. Officer

Foriska stated that while he did not observe Hollowell’s right front turn

signal, in his experience, a rear turn signal flashing that rapidly indicated

that the corresponding front turn signal had burned out. When Officer

Foriska observed Hollowell activate her left turn signal prior to turning into a

gas station parking lot, he noticed that the left rear turn signal was flashing

at a normal rate. Officer Foriska therefore decided to stop Hollowell’s

vehicle.2

After Officer Foriska approached Hollowell’s vehicle and made contact

with her, he stated that he could smell the aroma of an alcoholic beverage

coming from inside her vehicle. Officer Foriska asked Hollowell how much

2 Malfunctioning turn signals are a violation of section 4303(c) of the Motor Vehicle Code. Section 4303(c) provides, in pertinent part, that “[e]very motor vehicle … operated on a highway shall be equipped with a system of turn signal lights and hazard warning lights in conformance with regulations of the department.” 75 Pa.C.S.A. § 4303(c). Section 175.66(f) of the Pennsylvania Code states that vehicles “shall be equipped with … turn signal lamps … which under normal atmospheric conditions shall be capable of being seen and distinguished during nighttime operation at a distance of 500 feet.” 67 Pa. Code § 175.66(f) (citing 75 Pa.C.S.A. § 4303(c)). Section 175.66(f)(4) further provides that “turn signals shall have a frequency of flash between 60--120 flashes per minute.” 67 Pa. Code § 175.66(f)(4).

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she had to drink and she replied that she had consumed four alcoholic

beverages after 10:00 p.m. that evening. After putting Hollowell through a

series of sobriety tests, each of which she failed, Officer Foriska placed

Hollowell under arrest. Hollowell’s blood alcohol content (“BAC”) test

revealed that her BAC was .277%.

Hollowell was charged with DUI, highest rate of alcohol. On December

13, 2013, Hollowell filed a motion to suppress the evidence obtained as a

result of Officer Foriska stopping her vehicle. See Omnibus Motion for Pre-

Trial Relief, 12/13/13, at 1-2. On January 8, 2014, the trial court held a

hearing on Hollowell’s motion to suppress and subsequently denied the

motion the next day. See Trial Court Order, 1/9/14. On March 25, 2014,

following a stipulated, nonjury trial, the trial court found Hollowell guilty of

DUI, highest rate of alcohol, her second DUI-related offense. On April 8,

2014, the trial court sentenced Hollowell to ninety days to five years of

house arrest with electronic monitoring and ordered her to pay fines, costs,

and fees.

On May 2, 2014, Hollowell filed a timely notice of appeal. On May 8,

2014, the trial court ordered Hollowell to file a concise statement of the

errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania

Rules of Appellate Procedure. On May 21, 2014, Hollowell filed a timely Rule

1925(b) statement.

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On appeal, Hollowell raises the following issue for our review: “Did the

[trial] court err in denying [Hollowell]’s motion to suppress and specifically in

holding that the arresting officer’s observation of [Hollowell]’s turn signal

rose to the level of probable cause for the officer to make a traffic stop[?]”

Hollowell’s Brief at 4. We review the trial court’s denial of a motion to

suppress to determine whether the record supports the trial court’s factual

findings and whether it reached its legal conclusions in error.

Commonwealth v. Enick, 70 A.3d 843, 845 (Pa. Super. 2013), appeal

denied, 85 A.3d 482 (Pa. 2014). “If the record supports the trial court’s

findings of fact, we will reverse only if the trial court’s legal conclusions are

incorrect.” Id. (citation omitted).

Hollowell’s question concerns the quantum of cause required in order

for a law enforcement officer to stop a vehicle for an alleged violation of the

Motor Vehicle Code. The relevant statutory authority is section 6308(b) of

the Motor Vehicle Code, which provides:

Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b).

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Thus, section 6308(b) requires only reasonable suspicion in support of

a vehicle stop for gathering information necessary to enforce the Vehicle

Code violation. However, a police officer must have probable cause to

support a vehicle stop where the officer’s investigation following the stop

serves no “investigatory purpose relevant to the suspected [Vehicle Code]

violation.” Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super.

2010) (en banc), appeal denied, 25 A.3d 397 (Pa. 2011). Our Supreme

Court has explained:

Indeed, the language of § 6308 reflects this very intent. Stops based on reasonable suspicion are allowed for a stated investigatory purpose: “to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.” 75 Pa.C.S. § 6308(b). This is conceptually equivalent to the purpose of a Terry[3] stop. It does not allow all stops to be based on the lower quantum—it merely allows this for investigatory stops, consistent with the requirements of both federal and state constitutions. We interpret the legislature’s modification of § 6308 as merely eliminating the statutory requirement of a greater level of information for a stop under the Vehicle Code than is constitutionally required for all other stops.

Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008). “[I]f the officer

has a legitimate expectation of investigatory results, the existence of

reasonable suspicion will allow the stop—if the officer has no such

expectations of learning additional relevant information concerning the

3 Terry v. Ohio, 392 U.S. 1 (1968).

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suspected criminal activity, the stop cannot be constitutionally permitted on

the basis of mere suspicion.” Id. at 115. Therefore, “when the existence of

reasonable suspicion combines with the expectation that the stop will allow

light to be shed on the relevant matters, the stop is not unconstitutional.”

Id.

Here, Hollowell argues that this is a case where Officer Foriska had

nothing further to investigate after stopping her vehicle for the alleged turn

signal infractions, and thus reasonable suspicion could not support the stop.

See Hollowell’s Brief at 11. Rather, Hollowell contends that probable cause

was necessary to support Officer Foriska’s stop of her vehicle. See id. at 9-

11. Hollowell asserts that Officer Foriska’s mere estimation of the number of

times her right rear turn signal was flashing per minute was insufficient to

support the trial court’s determination that Officer Foriska had probable

cause to believe that she was in violation of the Vehicle Code. Id.

Accordingly, in this case, we must first determine whether reasonable

suspicion or probable cause was necessary to support the stop of Hollowell’s

vehicle. Officer Foriska stopped Hollowell’s vehicle because in his

estimation, her right rear turn signal was flashing much faster than a normal

turn signal, which in his experience indicated that Hollowell’s right front turn

signal had burned out. See N.T., 1/8/14, at 5-6. These observations gave

rise to a suspected violation of the Motor Vehicle Code provision requiring

that vehicles have properly functioning turn signals. See 75 Pa.C.S.A.

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§ 4303(c); 67 Pa. Code § 175.66(f)(4); supra, n.2. Officer Foriska also

testified, however, that he did not time the exact rate at which Hollowell’s

right rear turn signal was flashing and that he was unable to observe that

her right front turn signal was out prior to conducting the stop. N.T.,

1/8/14, at 5, 7. Therefore, in this case, stopping Hollowell’s vehicle for

further investigation was necessary to determine whether she was in

violation of section 4403(c) of the Motor Vehicle Code because Officer

Foriska could not see whether Hollowell’s front right turn signal was

operational, having only observed her vehicle from behind. Because further

investigation was necessary to determine whether Hollowell had violated the

Motor Vehicle Code, Officer Foriska needed only reasonable suspicion to

support his stop of Hollowell’s vehicle. See Chase, 960 A.2d at 115-16.

Our Court has defined reasonable suspicion as follows:

Reasonable suspicion is a less stringent standard than probable cause necessary to effectuate a warrantless arrest, and depends on the information possessed by police and its degree of reliability in the totality of the circumstances. In order to justify the seizure, a police officer must be able to point to specific and articulable facts leading him to suspect criminal activity is afoot. In assessing the totality of the circumstances, 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.

Thus, under the present version of Section 6308(b), in order to establish reasonable suspicion, an officer must be able to point to specific and articulable facts

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which led him to reasonably suspect a violation of the Motor Vehicle Code[.]

Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011) (quotation

marks, citations, and footnote omitted; emphasis in the original).

We agree with the trial court’s decision not to suppress the evidence

obtained from Hollowell’s vehicle stop as the record supports a

determination that Officer Foriska had reasonable suspicion to believe that

Hollowell had violated the Motor Vehicle Code.4 The certified record on

appeal reveals that Officer Foriska was able to point to specific and

articulable facts that led him to reasonably suspect that Hollowell committed

a violation of the Motor Vehicle Code. Officer Foriska observed Hollowell’s

right rear turn signal flashing, at his estimation, at a rate at the end of the

range permitted by 67 Pa. Code § 175.66(f)(4). N.T., 1/8/14, at 5, 7.

Officer Foriska also observed Hollowell’s left rear turn signal, which was

flashing at a normal, much slower rate than her right rear turn signal. Id. at

6. Officer Foriska thus had reason to believe that Hollowell’s right rear turn

signal was not functioning properly, and based on his experience, that her

front right turn signal had burned out because her right rear turn signal was

flashing so rapidly. Id. at 5-6. Therefore, Officer Foriska had reasonable

suspicion to believe that Hollowell’s turn signals were not operating properly

and that she was in violation of section 4403(c) of the Motor Vehicle Code,

4 Notably, Hollowell does not argue that Officer Foriska lacked reasonable suspicion to support a stop of her vehicle.

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thereby justifying the stop of her vehicle. Accordingly, the trial court did not

err by failing to suppress the evidence obtained through the stop of

Hollowell’s vehicle.5

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/18/2015

5 We note that the manner in which we reach our decision differs from that of the trial court. See Trial Court Opinion, 6/27/14, at 2-3. “We can affirm the [trial] court’s decision if there is any basis to support it, even if we rely on different grounds to affirm.” Commonwealth v. Lewis, 39 A.3d 341, 345 (Pa. Super. 2012).

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