Com. v. Prowant, E.

• Court: Superior Court of Pennsylvania
• Decided: June 22, 2021
• Docket: 1442 MDA 2020
• Status: Unpublished

Opinion

J-S14025-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EMILY ELISABETH PROWANT : : Appellant : No. 1442 MDA 2020

Appeal from the Judgment of Sentence Entered October 22, 2020 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000043-2020

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED JUNE 22, 2021

Appellant Emily Elisabeth Prowant appeals from the Judgment of

Sentence imposed after the trial judge convicted her of Driving Under the

Influence-Highest Rate (2nd offense).1 Appellant challenges the denial of her

Motion to Suppress. After careful review, we affirm on the basis of the

suppression court’s Opinion filed June 24, 2020.

We glean the underlying facts from the trial court’s opinion denying

Appellant’s Motion to Suppress. At approximately 2:00 AM on September 9,

2019, Officer Joseph Scharf of the State College Police Department was

monitoring traffic when he observed Appellant driving her vehicle very fast on

High Street, in comparison to other vehicles travelling on the same road at

the same time. Officer Scharf followed the vehicle as it continued on East

____________________________________________

1 75 Pa.C.S. § 3802(c). J-S14025-21

College Avenue and observed the vehicle weaving in its lane and crossing over

the fog line by a few feet at least twice. He initiated a traffic stop and upon

approaching the vehicle, smelled alcohol. In speaking with Appellant, Officer

Scharf noticed her face was flushed and her eyes were red and watery.

Appellant admitted to having consumed alcohol thirty minutes prior to the

stop. Officer Scharf conducted field sobriety tests, which Appellant failed.

Officer Scharf arrested her and transported her to the hospital where a blood

draw revealed a blood alcohol content (“BAC”) of 0.212%. The

Commonwealth charged her on November 14, 2019, with two counts of DUI

and one count of Driving on Roadways Laned for Traffic, 75 Pa.C.S. § 3309.2

Appellant filed a Motion to Suppress asserting that Officer Scharf did not

have probable cause to initiate the traffic stop. The suppression court held a

hearing on June 5, 2020, at which Officer Scharf testified that he saw Appellant

cross over the fog line by three or four feet two times in less than a mile. The

court admitted dash cam video from Officer Scharf’s vehicle showing Appellant

crossing over the fog line on four separate occasions. The court concluded

that based on the totality of the circumstances, Officer Scharf had probable

cause to believe a violation of the traffic code had occurred. Accordingly, the

2 75 Pa.C.S. § 3309(1) provides that a “vehicle shall be driven as nearly as

practicable entirely within a single lane[.]”

-2- J-S14025-21

court held that the traffic stop was constitutional, and any evidence obtained

as a result of the stop would not be suppressed.3

On August 27, 2020, Appellant proceeded to a stipulated bench trial4 at

which, inter alia, the trial court admitted the dash cam video and the notes of

testimony from the suppression hearing. The court explicitly found Appellant

guilty of count 2, DUI-Highest Rate (2nd offense) after the Commonwealth

indicated it was “not moving forward on” counts 1 and 3. N.T., 8/27/2020, at

9.

On October 22, 2020, the court sentenced Appellant to a five-year term

of probation with restrictive conditions, including 120 days’ in-home detention,

for DUI-Highest Rate (2nd offense).5, 6

3 The court also concluded that the stop was supported by Officer Scharf’s reasonable suspicion that Appellant was driving while intoxicated after he observed her vehicle’s excessive speed, weaving, and crossing the fog line four times. Tr. Ct. Op., 6/24/20, at 5-6.

4 At the same August 27, 2020 proceeding, prior to the instant stipulated trial,

the Commonwealth revoked ARD imposed in connection with a prior DUI- Highest Rate docketed at No. CP-14-CR-1919-2018, and Appellant entered a negotiated guilty plea to that offense.

5 At the sentencing proceeding, the court first sentenced Appellant on docket

no. 1919-2018 to 72 hours’ incarceration. See N.T. Sentencing, 10/22/2020, at 3, 7. The court imposed the sentence in the instant case to run consecutive to that prior sentence. Id. at 10.

6 Notwithstanding that the trial court’s docket indicates the court found Appellant not guilty of Counts 1 and 3, the sentencing order explicitly states that there shall be no separate sentence for Counts 1 and 3. Order, filed 11/6/2020, at ¶14.

-3- J-S14025-21

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The court responded by relying on its June 24, 2020 Opinion

denying the Suppression Motion.

Appellant raises the following issue for our review:

Whether the trial court erred in denying [Appellant’s] Motion to Suppress evidence obtained as a result of an illegal stop?

Appellant’s Br. at 6.

Appellant contends that the court erred in denying her suppression

motion because there was no evidence that Appellant’s “momentary

deviations from [her] line of travel . . . endanger[ed] public safety. Id. at 16.

This argument fails to garner relief.

We review the suppression court’s denial of a motion to suppress to

determine whether the record supports the court’s factual findings and

whether the legal conclusions drawn from those facts are correct.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007). In

conducting this review, we consider “only the evidence of the prosecution and

so much of the evidence of the defense as remains uncontradicted when read

in the context of the record as a whole.” Id. We are bound by the facts as

found by the suppression court, so long as they are supported by the record.

Id. We “may reverse only if the legal conclusions drawn therefrom are in

error.” Id.

-4- J-S14025-21

“It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given to their testimony.

The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citation omitted).

We have carefully reviewed the record, including the notes of testimony

from the suppression hearing. As summarized above, the suppression court

thoroughly reviewed the evidence presented at the suppression hearing before

filing a comprehensive Opinion setting forth statutory and case law pertaining

to the constitutionality of traffic stops that are supported by reasonable

suspicion and probable cause. Tr. Ct. Op., at 1-4. Our review of the record

and relevant case law supports the court’s factual findings and legal

conclusions. We, thus, affirm on the basis of the suppression court’s Opinion.

The parties are directed to annex the suppression court’s June 24, 2020

Opinion to any future filings.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/22/2021

-5- I I - 11 0011015$ '1111 il CCOMONNI? : a 1 4M

IN THE COURT OF CO ON PLEAS OF CENTRE COUNTY, PENNSYLVANIA. CRIMINAL DIVISION

COMMONWEALTH H OF PE SYLVANIA

V. No. CP-14-CR-0043-2020

EMILY PROWANT, Defendant

Attorney for the Commonwealt. Joshua Bower, Esq. Attorney for Defendant: Andrew J. Shubin, .Esq.

OPINION and ORDER

Ruest, F.J.

Presently before the Col is Emily Prowant's ("Defendant") Motion to Suppress'—'-' C ..

- c..

Evidence filed on February 21, 2020. A hearing was held June 5, 2020. Upon rduiPy of tl}56 ; M^- evidence and arguments of cou set, the Court finds as follows:

Findings of Fact

1. Defendant was charged by Criminal Complaint dated November 14, 201 : •with on6,R)

count of Driving Unde the Influence pursuant to 75 Pa.C.S.A. §3802(a)(1), one (1) count

of Driving Under the Influence pursuant to 75 Pa.C:S.A. §3802(c), and one (1) count of

Driving on Roadways aped for Traffic (Summary) pursuant to 75 Pa.C.S.A. §3309.

2. On September 9, 2019, Officer Joseph Scharf of the State College Police Department

("Officer Scharf') made atraffic stop of Defendant on East College Avenue.

3. At approximately 2:00 a.m., Officer Scharf was monitoring traffic from his patrol car

when he observed awl 'te Toyota Prius driving visibly fast on the 100 block of High

Street.

4. Officer Scharf noted the vehicle was being driven visibly fast in comparison to the

approximate speed of ther vehicles traveling on the same road at that time.

00 Ci RD CIS 5. Officer Scharf followed the vehicle, which continued eastbound on East College Avenue.

6, Officer Scharf observed it cross over the fog line by afew feet on two separate occasions.

7. Video from Officer Sch sdashboard camera in his patrol vehicle showed the vehicle

weaving in its lane and cross over the fog line on four separate occasions

8, Officer Scharf then activated his emergency lights and initiated atraffic stop.

9. Upon approaching the vehicle, Officer Scharf detected an odor of alcohol, observed

Defendant's face was fll shed and her eyes were red and watery.

10, Defendant admitted to having consumed alcohol thirty minutes prior to the stop and had

trouble locating her registration paperwork.

11. Officer Scharf asked D Pendant to exit the vehicle and administered field sobriety tests.

12. Defendant performed satisfactorily on the field sobriety tests, was placed under arrest,

and was transported tot eMount Nittany Medical Center, where ablood draw revealed a

0.212% BAC,

Conclusions of Law

1. Suppression of evidenc is governed by Pennsylvania Rule of Criminal Procedure 581,

which permits aDefeni [ant to make amotion "to suppress any evidence alleged to have

been, obtained in violat' on of the defendant's rights." Pa.R,Crim.P. 581.

2. At asuppression heari g, the Commonwealth has the burden of proving the evidence was

properly obtained by a.reponderance of the evidence. Commonwealth v. Galendez,

2011 PA Super, 180, 2 A.3 d. 1042, 1046.

3. Police officers may co duct avehicle stop when they possess probable cause that atraffic

violation has occurred. Corumomvealth v. Chase, 599 Pa. 80, 960 A.2d 108, 113 (2008).

2 Appendix "B-1" 4. "Probable cause to arres exists when the facts and circumstances within the police

officer's knowledge and fwhich the officer has reasonably trustworthy information are

sufficient in themselves owarrant aperson of reasonable caution in the belief that an

offense has been committed by the person to be arrested .Probable cause justifying a

warrantless arrest is determined by the totality of the circumstances." Galendez, 27 A.3d

at 1046 (quoting Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008))

5. An officer may stop acE it if he has reasonable suspicion to suspect that aviolation of the

)ccurring.75 Pa.C.S.A.§6308( Motor Vehicle Code is ( b); see Commonwealth v. Smith,

2007 PA Super. 25, 917 A.2d 848 ;see also Chase, 960 A.2d 108; Commonwealth v.

Holmes, 609 Pa. 1, 14 2•..3d 89 (2011).

6, "[A] vehicle stop based solely on reasonable suspicion of amotor vehicle violation `must

serve astated investigat ory purpose."' Commonwealth v. Bozeman, 2019 PA Super. 70,

205 A.3d 1264, 1270, appeal denied, 217 A.3d 809 (Pa. 2019).

7. A determination of reas onable suspicion is reached by aCourt by looking at the totality

of the circumstances an ddetermining if there are facts to support areasonable belief that

the law is being broken See Smith, 917 A.2d 848; Holmes, 14 A.3d 89; Commonwealth

v. Fulton, 2007 PA Super. 97, 921 A.2d 1239.

8. ' A]n officer must be able to point to specific and articulable facts which led him to

reasonably suspect aviolation of the Motor Vehicle Code." Holmes, 14 A.3d at 96.

9. "Reasonable suspicion sufficient to stop amotorist must be viewed from the standpoint

of an objectively reaso able police officer." Chase, 960 AN at 120 (citing Ornelas V.

United States, 517 U.`. 690, 696, 11 -6S.Ct. 1657 (1996)).

3 Appendix "B-2" 10. "[C]ourts must also afford due weight to the specific, reasonable inferences drawn from

the facts in light of the cfficer's experience and acknowledge that innocent facts, when

considered collectively, may permit the investigative detention." Holmes, 14 A.3d at 95--

96 (citing Commonivea, 'th v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999)}.

Discussion

Suppression of evidence is governed by Pennsylvania Rule of Criminal Procedure 581,

which permits aDefendant to rr lake amotion "to suppress any evidence alleged to have been

obtained in violation of the defe ;ndanf srights." Pa.R.Crim.P. 581. Defendant asserts at the time

the traffic stop was initiated, Of 'ficer Scharf lacked probable cause to believe Defendant had

violated 75 Pa.C.S.A. §3309 (D riving on Roadways Laned for Traffic). Defendant claims where

avehicle is driven outside the 1< me of traffic for just amomentary period of time and in aminor

manner, atraffic stop is unwarr anted. After reviewing the evidence and testimony under the

totality of the circumstances, t sCourt finds Officer Scharf had probable cause to initiate a

traffic stop of Defendant for vi lation of 75 Pa.C.S.A. §3309 and also had areasonable suspicion

to initiate atraffic stop for Driving Under the Influence.

Police officers may con luct avehicle stop when they possess probable cause that atraffic

violation has occurred. Chase, X60 A.2d at 113. The Commonwealth has the burden of proving

by apreponderance of the evil ,nce the vehicle stop of Defendant was accompanied by probable

cause. See Galendez, supra. A >reponderance of the evidence standard is met when the

Commonwealth has proven it i; more likely than not the acquired evidence was obtained legally.

Id. "Probable cause... is determined by the totality of the circumstances." 1'd. at 1046. Included

in the Court's consideration of the totality of the circumstances are "the facts and circumstances

4 Appendix "B-3" within the police officer's knowledge and of which the officer has reasonably trustworthy

information..." Id.

Here, the Commonweal hestablished probable cause by apreponderance of the evidence

through Officer Scharf stesfimDny and his patrol vehicle's dashboard camera video of the

incident. Officer Scharf testifie Ihe observed Defendant's vehicle cross over the fog line by three

or four feet twice in less than amile. The dash-cam video shows Defendant's vehicle cross the

fog line on four separate occasi ns, The video also shows anumber of vehicles driving by on the

Toad before and during the traf cstop as well as aPennDOT sign about three or four feet off the

fog line on the shoulder, of the ioad, which Defendant passed. Section 3309(1) of the Motor

Vehicle Code states "[a] vehicle shall be driven as nearly as practicable entirely within asingle

lane..." 75 Pa,C.S.A. §3309. Eased on the totality of the circumstances, Officer Scharf had

probable cause to believe Defendant violated 75 Pa.C.S.A. §3309. Given that Officer Scharf had

probable cause to believe avio ation of the Motor Vehicle Code had occurred, his initiation of a

traffic stop of Defendant was not unconstitutional and evidence obtained as aresult of the stop

will not be suppressed..

Even if the Commonwealth had failed to establish the probable cause needed for a75

Pa.C,S.A. §3309(1) traffic stop Officer Scharf had reasonable suspicion to conduct astop of

Defendant for Driving Under teInfluence. Police officers may conduct atraffic stop if they

have reasonable suspicion to s spect that aviolation of the Motor Vehicle Code is occurring. 75

Pa.C,S.A. §6308(b); see Smith, 917 A.2d 848; Chase, 960 A.2d 108; Holmes, 14 A.3d 89

(2011). According to Section 69 08(b), "a vehicle stop based solely on reasonable suspicion of a

motor vehicle violation `must •erve astated investigatory purpose"' relevant to the suspected

5 Appendix "B-4 violation. Bozeman, 205 A.3d: t1270; see also Commonwealth v. Feczko, 2010 PA Super 239,

10 A..3d 1285, 1291, "

Reasonable suspicion is determined by looking at the totality of the circumstances and

determining if there are facts to support areasonable belief that the law is being broken. See

Smith, 917 A.2d 848; Holmes, 14 A.3d 89; Fulton, 921 A.2d 1239. An officer making astop

oust be able to identify "specific and articulable facts which led based on reasonable suspicion i

him to reasonably suspect aviolation of the Motor Vehicle Code." .Holmes, 14 A.3d at 96.

Reasonable suspicion "must be viewed from the standpoint of an objectively reasonable police

officer." Chase, 960 A.2d at K.0 (citing Ornelas, 517 U.S. at 696). Due weight must be given to

"the specific, reasonable infere: ;ices drawn from the facts in light of the officer's experience..."

Holmes, 14 A.3d at 95-96 (c ti ng Cook, 735 A.2d at 676).

Mere, the Commonwe th established by apreponderance of the evidence that Officer

Scharf had reasonable suspicion to initiate atraffic stop to investigate whether Defendant was

Driving Under the Influence. In his testimony, Officer Scharf stated he observed Defendant's

vehicle traveling visibly fast in;comparison to the approximate speed of other vehicles on the

same street. After Officer Scha fbegan following Defendant's vehicle, he observed Defendant's

vehicle weave in its lane'and coss the fog line by three or four feet twice. The dash-cam video

confirms Officer Scharfs testi ony and shows Defendant's vehicle cross the fog line as many as

four times. When viewed fro the standpoint of an objectively reasonable officer, Defendant's

speed, weaving, and repeated rossing of the fog line, along with the time of night (2:00 a.m.),

are specific and articulable fac swhich establish reasonable suspicion. After reviewing the

evidence presented by the part es under the totality of the circumstances, there was sufficient

reasonable suspicion to initiat atraffic stop of Defendant for Driving Under the Influence.

6 Appendix "B-5" ORDER

AND NOW,this •1 ay of June, 2020, Defendant ' sMotion to Suppress Evidence is

DENIED.

BY THE COURT,

Pamela A. Ruest,President Judge

Appendix "B-6"