J-S29033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GALINA LIALKO : : Appellant : No. 2891 EDA 2019
Appeal from the Judgment of Sentence Entered October 1, 2019 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006899-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 21, 2020
Galina Lialko (Lialko) appeals the judgment of sentence entered by the
Court of Common Pleas of Delaware County (trial court). Following a bench
trial, Lialko was found guilty of driving under the influence of alcohol (DUI)1
and driving with a blood-alcohol concentration of over 0.16%.2 The counts
were merged for sentencing purposes, and Lialko received two years of
intermediate punishment, followed by one year of probation. Lialko contends
in this appeal that her convictions must be overturned because the trial court
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(a)(1).
2 75 Pa.C.S. § 3802(c). J-S29033-20
erroneously denied her motion to suppress evidence obtained during the
subject traffic stop. We affirm.
The material facts of this case, as summarized in the trial court’s
1925(a) opinion, are not in dispute. See 1925(a) Opinion, 11/20/2019, at 3-
5. On June 8, 2018, at about 3:00 a.m., a patrol officer observed Lialko
driving alone in her car on an interstate highway. In view of the officer, she
made an “abrupt and wide” lane change, passing a vehicle from the left lane
to the right lane. Id. at 5. Moments later, Lialko repeated the maneuver
when she caught up to another motorist. Id.
The officer followed Lialko as she moved her vehicle into the right lane
and weaved through traffic. The officer trailed Lialko at speeds up to 75 miles
per hour in a zone with a posted speed limit of 55 miles per hour. However,
the officer did not clock that speed for 3/10 of a mile because of Lialko’s erratic
breaking and acceleration. Id. at 4.
On three occasions, the officer saw Lialko’s vehicle shortly cross a solid
white “fog line” on the right shoulder of the road. Id. Finally, as Lialko
appeared to be poised to turn off the highway at an exit about two miles from
where the officer first spotted her, Lialko again drove on, at which point the
officer pulled her over to investigate a possible DUI. Id. at 5.
As recounted by the officer, Lialko seemed sluggish; her eyes were
bloodshot; her speech was slurred; and her vehicle smelled strongly of
alcohol. See Affidavit of Probable Cause, 7/9/2018, at 1. The officer had
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Lialko perform a series of roadside exercises. Based on her performance, she
was arrested on suspicion of DUI. About two hours after she was taken into
custody, Lialko took a breathalyzer test registering a blood-alcohol level of
0.198%, over double the legal limit. Id.
At trial, Lialko sought to suppress the result of the breathalyzer test, as
well as all other evidence obtained by the police after she was pulled over,
arguing that it was the fruit of an unreasonable search. 3 Lialko contended
that because the officer did not observe her violate any traffic law, he did not
have reasonable suspicion that she was intoxicated.
The trial court denied Lialko’s suppression motion, ruling that the traffic
stop was valid. Lialko went to trial, where she was found guilty and sentenced
as outlined above. Lialko timely appealed, and the trial court set forth its
findings of fact and rulings of law in a 1925(a) opinion concluding that under
the totality of the circumstances, the officer gave a credible account
supporting reasonable suspicion for the stop. See 1925(a) Opinion,
11/20/2019, at 4-5.
The sole issue Lialko raises on appeal is whether, as a matter of law,
the trial court erred in finding that the officer’s observations justified her initial
3 A certificate of speedometer accuracy and a video recording taken from within the patrol vehicle were put into evidence at the suppression hearing, which was held on April 4, 2019. The bench trial was held on August 5, 2019.
-3- J-S29033-20
detention. See 1925(b) Statement, 11/6/2019, at 1. We find that since the
trial court believed the officer to be credible and the officer’s account is
sufficient to establish the stop’s legality, the trial court did not err in denying
Lialko’s motion to suppress the evidence obtained after the traffic stop began.4
“A warrantless seizure is presumptively unreasonable under the Fourth
Amendment, subject to a few specifically established, well-delineated
exceptions.” Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008); see
also Terry v. Ohio, 392 U.S. 1 (1968) (same); Katz v. United States, 389
U.S. 347, 357 (1967) (same). One such exception is that police may briefly
detain motorists when the officers “witness or suspect a violation of traffic
laws, even if it is a minor offense.” Chase, 960 A.2d at 113. Such a detention
must be justified “at its inception,” as well as “reasonably related in scope to
4 On review of an order denying the suppression of evidence, we apply the following standard:
We are limited to determining whether the lower court’s factual findings are supported by the record and whether the legal conclusions drawn therefrom are correct. We may consider the evidence of the witnesses offered by the Commonwealth, as verdict winner, and only so much of the evidence presented by [the] defense that is not contradicted when examined in the context of the record as a whole. We are bound by facts supported by the record and may reverse only if the legal conclusions reached by the court were erroneous.
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006).
-4- J-S29033-20
the circumstances which justified the interference in the first place.”
Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000).
To stop a vehicle because of a suspected DUI, an officer must have
reasonable suspicion of that crime as opposed to the more stringent standard
of probable cause:
[W]hen considering whether reasonable suspicion or probable cause is required constitutionally to make a vehicle stop, the nature of the violation has to be considered. If it is not necessary to stop the vehicle to establish that a violation of the Vehicle Code has occurred, an officer must possess probable cause to stop the vehicle. Where a violation is suspected, but a stop is necessary to further investigate whether a violation has occurred, an officer need only possess reasonable suspicion to make the stop. Illustrative of these two standards are stops for speeding and DUI. If a vehicle is stopped for speeding, the officer must possess probable cause to stop the vehicle. This is so because when a vehicle is stopped, nothing more can be determined as to the speed of the vehicle when it was observed while traveling upon a highway.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015); see also
75 Pa.C.S.
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J-S29033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GALINA LIALKO : : Appellant : No. 2891 EDA 2019
Appeal from the Judgment of Sentence Entered October 1, 2019 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006899-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 21, 2020
Galina Lialko (Lialko) appeals the judgment of sentence entered by the
Court of Common Pleas of Delaware County (trial court). Following a bench
trial, Lialko was found guilty of driving under the influence of alcohol (DUI)1
and driving with a blood-alcohol concentration of over 0.16%.2 The counts
were merged for sentencing purposes, and Lialko received two years of
intermediate punishment, followed by one year of probation. Lialko contends
in this appeal that her convictions must be overturned because the trial court
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(a)(1).
2 75 Pa.C.S. § 3802(c). J-S29033-20
erroneously denied her motion to suppress evidence obtained during the
subject traffic stop. We affirm.
The material facts of this case, as summarized in the trial court’s
1925(a) opinion, are not in dispute. See 1925(a) Opinion, 11/20/2019, at 3-
5. On June 8, 2018, at about 3:00 a.m., a patrol officer observed Lialko
driving alone in her car on an interstate highway. In view of the officer, she
made an “abrupt and wide” lane change, passing a vehicle from the left lane
to the right lane. Id. at 5. Moments later, Lialko repeated the maneuver
when she caught up to another motorist. Id.
The officer followed Lialko as she moved her vehicle into the right lane
and weaved through traffic. The officer trailed Lialko at speeds up to 75 miles
per hour in a zone with a posted speed limit of 55 miles per hour. However,
the officer did not clock that speed for 3/10 of a mile because of Lialko’s erratic
breaking and acceleration. Id. at 4.
On three occasions, the officer saw Lialko’s vehicle shortly cross a solid
white “fog line” on the right shoulder of the road. Id. Finally, as Lialko
appeared to be poised to turn off the highway at an exit about two miles from
where the officer first spotted her, Lialko again drove on, at which point the
officer pulled her over to investigate a possible DUI. Id. at 5.
As recounted by the officer, Lialko seemed sluggish; her eyes were
bloodshot; her speech was slurred; and her vehicle smelled strongly of
alcohol. See Affidavit of Probable Cause, 7/9/2018, at 1. The officer had
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Lialko perform a series of roadside exercises. Based on her performance, she
was arrested on suspicion of DUI. About two hours after she was taken into
custody, Lialko took a breathalyzer test registering a blood-alcohol level of
0.198%, over double the legal limit. Id.
At trial, Lialko sought to suppress the result of the breathalyzer test, as
well as all other evidence obtained by the police after she was pulled over,
arguing that it was the fruit of an unreasonable search. 3 Lialko contended
that because the officer did not observe her violate any traffic law, he did not
have reasonable suspicion that she was intoxicated.
The trial court denied Lialko’s suppression motion, ruling that the traffic
stop was valid. Lialko went to trial, where she was found guilty and sentenced
as outlined above. Lialko timely appealed, and the trial court set forth its
findings of fact and rulings of law in a 1925(a) opinion concluding that under
the totality of the circumstances, the officer gave a credible account
supporting reasonable suspicion for the stop. See 1925(a) Opinion,
11/20/2019, at 4-5.
The sole issue Lialko raises on appeal is whether, as a matter of law,
the trial court erred in finding that the officer’s observations justified her initial
3 A certificate of speedometer accuracy and a video recording taken from within the patrol vehicle were put into evidence at the suppression hearing, which was held on April 4, 2019. The bench trial was held on August 5, 2019.
-3- J-S29033-20
detention. See 1925(b) Statement, 11/6/2019, at 1. We find that since the
trial court believed the officer to be credible and the officer’s account is
sufficient to establish the stop’s legality, the trial court did not err in denying
Lialko’s motion to suppress the evidence obtained after the traffic stop began.4
“A warrantless seizure is presumptively unreasonable under the Fourth
Amendment, subject to a few specifically established, well-delineated
exceptions.” Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008); see
also Terry v. Ohio, 392 U.S. 1 (1968) (same); Katz v. United States, 389
U.S. 347, 357 (1967) (same). One such exception is that police may briefly
detain motorists when the officers “witness or suspect a violation of traffic
laws, even if it is a minor offense.” Chase, 960 A.2d at 113. Such a detention
must be justified “at its inception,” as well as “reasonably related in scope to
4 On review of an order denying the suppression of evidence, we apply the following standard:
We are limited to determining whether the lower court’s factual findings are supported by the record and whether the legal conclusions drawn therefrom are correct. We may consider the evidence of the witnesses offered by the Commonwealth, as verdict winner, and only so much of the evidence presented by [the] defense that is not contradicted when examined in the context of the record as a whole. We are bound by facts supported by the record and may reverse only if the legal conclusions reached by the court were erroneous.
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006).
-4- J-S29033-20
the circumstances which justified the interference in the first place.”
Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000).
To stop a vehicle because of a suspected DUI, an officer must have
reasonable suspicion of that crime as opposed to the more stringent standard
of probable cause:
[W]hen considering whether reasonable suspicion or probable cause is required constitutionally to make a vehicle stop, the nature of the violation has to be considered. If it is not necessary to stop the vehicle to establish that a violation of the Vehicle Code has occurred, an officer must possess probable cause to stop the vehicle. Where a violation is suspected, but a stop is necessary to further investigate whether a violation has occurred, an officer need only possess reasonable suspicion to make the stop. Illustrative of these two standards are stops for speeding and DUI. If a vehicle is stopped for speeding, the officer must possess probable cause to stop the vehicle. This is so because when a vehicle is stopped, nothing more can be determined as to the speed of the vehicle when it was observed while traveling upon a highway.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015); see also
75 Pa.C.S. § 6308(b) (authorizing police stop a vehicle when there is
reasonable suspicion that a Traffic Code violation has occurred).
An officer has “reasonable suspicion” of criminal activity or a violation
of the Vehicle Code where she can articulate “specific observations which, in
conjunction with reasonable inferences derived from these observations led
[her] reasonably to conclude, in light of [her] experience, that criminal activity
was afoot and the person [s]he stopped was involved in that activity.”
Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super. 2007) (quoting
Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006)).
-5- J-S29033-20
Although Lialko correctly points out that she was never seen violating
the Traffic Code prior to the stop in question,5 a violation is not necessary to
establish the legality of a stop for the purposes of investigating a DUI:
[I]f an officer possesses sufficient knowledge based upon behavior suggestive of DUI, the officer may stop the vehicle upon reasonable suspicion of a Vehicle Code violation, since a stop would provide the officer the needed opportunity to investigate further if the driver was operating under the influence of alcohol or a controlled substance.
Salter, 121 A.3d at 993 (citations omitted); see also Commonwealth v.
Cook, 735 A.2d 673, 676 (Pa. 1999) (“[E]ven a combination of innocent facts,
when taken together, may warrant further investigation by the police
officer.”).
In this case, there were sufficient circumstances prior to the stop that
could justify the need for an officer to investigate if Lialko was driving while
impaired by alcohol or a controlled substance. The officer testified that he
saw Lialko’s vehicle exceed the posted speed limit by about 20 miles per hour.
Over a two-mile stretch, the officer also saw Lialko weaving through traffic,
crossing over the fog line three times, and drifting within her lane. Lialko’s
conduct at the wheel also suggested that she was confused, as evidenced by
her indecision at highway exits and aggressive passes of other drivers.
5 The officer and the Commonwealth have never attempted to show that the stop was justified by a speeding violation alone. Rather, Lialko’s speeding was referred to as part of the broader pattern of conduct that could indicate that she was driving while impaired.
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Even if it was not a crime to drive in the manner that the officer in this
case observed, these circumstances were nevertheless sufficient to justify a
reasonable inference that Lialko was committing the offense of DUI and that
a traffic stop would be needed for further investigation. See, e.g.,
Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa. Super. 2010) (DUI stop
valid where officer saw vehicle repeatedly drifting over fog line and median
line); Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super. 2007)
(legal stop where officer saw driver swerve out of lane three times in a dense
fog on a crowded road and twice over fog line); Commonwealth v. Sands,
887 A.2d 261, 272 (Pa. Super. 2005) (stop valid where officer saw driver
repeatedly weaving back and forth over fog line and likely exceeding speed
limit). Thus, the trial court did not err in denying Lialko’s suppression motion,
and the order on review must stand.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/21/20
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