Com. v. Parlanti, E.

• Court: Superior Court of Pennsylvania
• Decided: July 9, 2018
• Docket: 1432 MDA 2017
• Status: Unpublished

Opinion

J-S28008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EUGENE J. PARLANTI : : Appellant : No. 1432 MDA 2017

Appeal from the Judgment of Sentence September 7, 2017 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001902-2016

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED JULY 09, 2018

Appellant, Eugene J. Parlanti, appeals from the judgment of sentence

entered on September 7, 2017. We affirm.

The factual background and procedural history of this case are as

follows. On March 9, 2016, Officer Samuel DeSimone of the Pittston City

Police Department pulled Appellant over after he failed to use his turn signal

when he “merged” onto Kennedy Boulevard from North Main Street.

Thereafter, the Commonwealth charged Appellant via criminal information

with driving under the influence (“DUI”) – general impairment1 and DUI –

higher rate.2 On September 15, 2016, Appellant filed a suppression motion.

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1 75 Pa.C.S.A. § 3802(a)(1).

2 75 Pa.C.S.A. § 3802(b). J-S28008-18

On April 4, 2017, the trial court held a combined suppression hearing

and bench trial. The trial court granted in part and denied in part Appellant’s

suppression motion. It held that the traffic stop was lawful, however, the

ensuing blood draw evidence was inadmissible. The trial court also found

Appellant guilty of DUI – general impairment and sentenced him to six months’

intermediate punishment, including ten days’ confinement. This timely appeal

followed.3

Appellant presents one issue for our review:

Did the trial court commit an error of law in . . . finding that the officer had probable cause to believe that [] Appellant violated a provision of the Motor Vehicle Code when he failed to engage his turn signal at a split in the road, even though no signal was required under the circumstances?

Appellant’s Brief at 2.

Appellant’s lone issue challenges the trial court’s denial of his

suppression motion. Our “standard of review in addressing a challenge to the

denial of a suppression motion is limited to determining whether the [trial]

court’s factual findings are supported by the record and whether the legal

conclusions drawn from those facts are correct.” Commonwealth v.

3 On September 19, 2017, the trial court ordered Appellant to file a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On October 31, 2017, Appellant filed his concise statement. On November 8, 2017, the trial court issued an order stating that its rationale for denying Appellant’s suppression motion was included in the certified record. Appellant’s lone appellate issue was included in his concise statement.

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McClellan, 178 A.3d 874, 880 (Pa. Super. 2018) (citation omitted). “[O]ur

scope of review is limited to the factual findings and legal conclusions of the

[trial] court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted).

“We may consider 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. Fitzpatrick, 181 A.3d 368,

373 (Pa. Super. 2018) (citation omitted). After a defendant files a suppression

motion, “the Commonwealth bears the burden of proving by a preponderance

of the evidence that the evidence was lawfully obtained.” Commonwealth

v. Batts, 163 A.3d 410, 453 n.22 (Pa. 2017) (citation omitted).

Our Supreme Court has held that a police officer must have probable

cause that a violation of the Motor Vehicle Code occurred to conduct a traffic

stop if the alleged violation is not “investigatable.” Commonwealth v.

Chase, 960 A.2d 108, 116 (Pa. 2008). In this case, the officer stopped

Appellant for failing to use a turn signal – a violation of 75 Pa.C.S.A. § 3334(a)

that is not investigatable. Hence, the officer needed probable cause to stop

Appellant’s vehicle. See Commonwealth v. Brown, 64 A.3d 1101, 1105 n.3

(Pa. Super. 2013), appeal denied, 79 A.3d 1096 (Pa. 2013).

Appellant argues that he was not required to use his turn signal when

he “merged” onto Kennedy Boulevard from North Main Street. The Motor

Vehicle Code provides that:

Upon a roadway no person shall turn a vehicle or move from one traffic lane to another or enter the traffic stream from a parked

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position unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.

75 Pa.C.S.A. § 3334(a).

Appellant’s reliance on the officer’s use of the word “merge” in his

testimony to suggest that no “turn” or “move” of a vehicle occurred within the

meaning of section 3334(a) is misplaced. A photograph of the subject

intersection was entered into evidence at the suppression hearing. It is

evident from the photograph that Appellant’s entry onto Kennedy Boulevard

involved a lane change that required appropriate signaling under section

3334(a). Hence, the exact terminology that the officer used when describing

Appellant moving from North Main Street to Kennedy Boulevard is immaterial

to determining if Appellant was required to use his turn signal.

The photograph of the intersection admitted at the suppression hearing

indicates that North Main Street continues to the left and that “merging” onto

Kennedy Boulevard requires the driver to move from one lane, i.e., the North

Main Street lane, to another lane,4 i.e., the Kennedy Boulevard lane.

Therefore, Appellant was required to use his turn signal to “merge,” move, or

turn onto Kennedy Boulevard. Hence, the traffic stop was supported by

4 Appellant concedes there is only one lane on North Main Street. Thus, the distinction Appellant attempts to draw between traveling on the left side of the lane versus the right side of the lane is immaterial for purposes of section 3334(a). The clear language of the statute compels the use of an appropriate signal whenever one’s vehicle moves from one lane to another.

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probable cause and the trial court properly denied Appellant’s suppression

motion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/09/2018

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