Com. v. Wade-Proctor, S.

• Court: Superior Court of Pennsylvania
• Decided: August 31, 2022
• Docket: 1011 MDA 2021
• Status: Unpublished

Opinion

J-A14014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAWN DERRICK WADE-PROCTOR : : Appellant : No. 1011 MDA 2021

Appeal from the Judgment of Sentence Entered June 25, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005594-2020

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 31, 2022

Appellant, Shawn Derrick Wade-Proctor, appeals from the judgment of

sentence of, inter alia, 3 days’ to 6 months’ incarceration, imposed after he

was convicted of driving under the influence of alcohol or controlled substance

– controlled substances, 75 Pa.C.S. § 3802(d)(1)(i); driving under the

influence of alcohol or controlled substance – controlled substances, 75

Pa.C.S. § 3802(d)(1)(iii); driving on roadways laned for traffic – driving within

a single lane, 75 Pa.C.S. § 3309(1); violating the duty of a driver in emergency

response areas, 75 Pa.C.S. § 3327(a)(1); and operating a vehicle without

official certificate of inspection, 75 Pa.C.S. § 4703(a)(1). On appeal, Appellant

solely challenges the trial court’s denial of his motion to suppress the traffic

stop due to a lack of probable cause. After review, we affirm.

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* Former Justice specially assigned to the Superior Court. J-A14014-22

Appellant proceeded to a non-jury trial on June 25, 2021. Prior to the

trial commencing, the court held a hearing on Appellant’s pending suppression

motion, in which Appellant argued that the patrolling officer did not have

probable cause to stop his vehicle on the day in question. At the suppression

hearing, the Commonwealth called Pennsylvania State Police Trooper Shane

Dressler (“Trooper Dressler”) to testify. N.T., 6/25/21, at 7. Trooper Dressler

testified that, on September 6, 2020, he was on patrol duty in York County,

wearing his uniform and driving a marked car. Id. at 8-9. Trooper Dressler

recalled that, at some point, he was called to back up another trooper at a

traffic stop on Route 83, around mile marker 29-30 southbound. Id. at 9.

Trooper Dressler described that he “was parked behind another trooper … who

was typing a citation for the person he had pulled over, and I was monitoring

my side mirror, looking for drivers who would not move over to the left lane.”

Id. As he was doing so, Trooper Dressler recounted that he, observed a vehicle, it was a sedan. I don’t remember what color. While I was looking in my side mirror, I observed the sedan swerve over behind me, swerve over the white line. … [T]o me[,] it appeared the vehicle was about to strike my vehicle. The vehicle then s[w]erved back over[,] back into his lane[,] in the right lane[,] and passed me. The vehicle also failed to move over to the left lane as he was passing me with my emergency lights in effect.

Id.

Trooper Dressler stated that he then began to follow the vehicle. Id. at

10. As he observed the vehicle, Trooper Dressler saw that the driver

continued to weave within his lane. Id. Trooper Dressler said he subsequently

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got behind the vehicle and initiated a traffic stop. Id. Trooper Dressler

identified Appellant as the operator of the at-issue vehicle. Id. at 16.

During Trooper Dressler’s testimony, the Commonwealth introduced and

played the “dash cam” video from that day. See id. at 10-15; see also

Commonwealth’s Exhibit 1 (“Dash Cam Video”). As the Commonwealth

played the dash cam video, Trooper Dressler described the events that

unfolded as follows: [The court]: Officer, describe what you’re seeing … on the video or give us context here.

[Trooper Dressler]: Okay. So right now[,] I am looking in my side mirror for vehicles that are not passing in the left lane. I’m looking for vehicles that are passing in the right lane. It’s an officer safety issue, and that’s the law.

***

[The Commonwealth]: Whose vehicle are we looking in front of?

[Trooper Dressler]: We’re looking at – Trooper Eric Dressler was operating that vehicle, I believe he’s writing a citation right now. So I’m looking in my side mirror for vehicles who are failing to move over to the left lane, [and] at this time I think I observe the sedan begin to swerve towards my vehicle, cross over the white line, the white dash line that you can see right there, and, yep, you just saw it pass right there. It was very close to my vehicle and the vehicle in front of me.

So right here, that vehicle right there, passed and … I would say [it was] within a foot or two of striking my vehicle and the vehicle in front of me. That’s what caught my attention. I pull out and begin to follow the vehicle, trying to catch up. At this point[,] I’m trying to catch up. So right there[,] you can see the vehicle again. … [I]ts right tires look[] like [they are] touching the white line. It’s still weaving within its lane, continuing right there. I go into the left lane to catch the vehicle, get behind it here momentarily, I get behind the vehicle. He fails to maintain his lane. I turn my

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emergency lights and sirens on, … and the vehicle has a slow response to my emergency equipment, continues to travel in the shoulder, keeps going for a good bit and finally comes to a stop.

[The Commonwealth]: Pausing the video at 4 minutes and 12 seconds. … Trooper Dressler, going back to the traffic stop for a moment, were your emergency lights on when you were parked behind Trooper Eric Dressler?

[Trooper Dressler]: Yes.

[The Commonwealth]: And can you describe that section of [Route] 83, specifically leading up to the stop as cars are driving towards you?

[Trooper Dressler]: This is a straightaway. This is a straightaway from about mile marker 32 all the way until about mile marker 26 southbound. You can see clearly for miles. You can see if a state trooper has his emergency lights on, and there’s, in my opinion, there’s plenty of time to get over into the left lane from where I was parked.

N.T. at 13-16. At the relevant time, Trooper Dressler additionally recalled that

“it was a clear day, it was daylight[,] and the road was dry.” Id. at 8.

On cross-examination, Trooper Dressler acknowledged that Appellant’s

swerve, which he alleged nearly hit his vehicle, was not on the dash cam

video. Id. at 18. Trooper Dressler also recognized that, at the time Appellant

passed his vehicle, there were other vehicles in the left-hand lane, and two

other vehicles — one in front and one behind Appellant — in the right-hand

lane. Id. at 18-19. Trooper Dressler agreed that, if Appellant had slammed

on his brakes, it would been unsafe for the other drivers on the road. Id. at

20. Nevertheless, Trooper Dressler explained that he pulled Appellant over

for “failing to maintain the lane, which is what I witnessed in my side-view

mirror, and I believe [Section] 3327, which is the move over law.” Id. at 22.

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On re-direct examination, when asked why he pulled Appellant over

instead of the other two vehicles in the right-hand lane, Trooper Dressler

answered: Because [Appellant’s] driving was unsafe compared to the other two. I witnessed in my side mirror, like I said before, [Appellant’s vehicle] swerve over with [its] right tires passing the white line that you see right there, and almost strike my vehicle, and you saw it clear as day in the video that [Appellant] was much closer than the other two vehicles. That is why that vehicle … captured my attention, and that’s why I pulled that vehicle over.

Id. Further, Trooper Dressler agreed that Appellant could have moved into

the left-hand lane prior to being adjacent with Trooper Dressler’s patrol

vehicle, given that there was a straightaway leading up to the spot where the

patrol vehicles were pulled over. See id. at 23-24.

Following argument from the parties, the trial court denied Appellant’s

motion to suppress. In doing so, the trial court noted that — even if it credited

Appellant’s argument that he could not have safely moved into the left-hand

lane — Trooper Dressler testified that the “primary reason” he pulled Appellant

over was because Appellant “was not driving in a single lane” and had

“swerved off the lane and almost hit [Trooper Dressler’s] car.” Id. at 26-27.

Thus, because Trooper Dressler observed a traffic violation under Section

3309(1), which pertains to driving within a single lane, the trial court

determined that Trooper Dressler had probable cause to pull Appellant over.

See id.

The non-jury trial then immediately ensued, and Appellant was

convicted of the above-stated offenses, which included, inter alia, driving

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under the influence of alcohol or controlled substance, driving on roadways

laned for traffic – driving within a single lane, and violating the duty of a driver

in emergency response areas. See id. at 48 (the trial court’s finding, among

other things, that Appellant was “operating a motor vehicle on Route 83 in

Northern York County on September 6th, 2020, and that his blood, with his

consent, was drawn shortly thereafter, and tested positive for the scheduled

one controlled substance of marijuana, that result being above the reporting

limit”); id. at 49 (accepting Trooper Dressler’s testimony that “he observed

[Appellant] in his rear-view mirror swerving over and crossing the fog line on

the right-hand lane of Route 83”); id. at 50 (crediting Trooper Dressler’s

testimony that, because motorists have an unobstructed view on the relevant

stretch of Route 83, Appellant “would have had plenty of time upon observing

the flashing lights indicating the emergency response area to have moved into

the left-hand lane safely,” but failed to do so).

The trial court subsequently sentenced Appellant to, among other

things, 3 days’ to 6 months’ incarceration. Appellant timely filed a notice of

appeal. The trial court then directed Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and, after

receiving an extension to do so, Appellant timely complied. Thereafter, the

trial court issued its Rule 1925(a) opinion. In its Rule 1925(a) opinion, the

trial court stated that it “determined that Trooper Dressler observed

[Appellant] commit a violation of [Section] 3309(1)[, i.e., driving on roadways

laned for traffic – driving within a single lane,] and [Section] 3327[, i.e.,

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violating the duty of a driver in emergency response areas]…, and therefore

had probable cause to stop [Appellant’s] vehicle.” Trial Court Opinion (“TCO”),

9/29/21, at 4 (emphasis added).1

On appeal, Appellant raises a single issue for our review: Whether the trial court erred in denying [Appellant’s] [m]otion to [s]uppress the traffic stop on the basis of a lack of probable cause to stop the vehicle under either 75 Pa.C.S. § 3309 or 75 Pa.C.S. § 3327?

Appellant’s Brief at 5.

At the outset, when evaluating a trial court’s decision to deny a motion

to suppress, we acknowledge that: Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. Where … the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (cleaned up).

1As Appellant points out, at the suppression hearing, the trial court had not denied his motion to suppress based on a violation of Section 3327. See, e.g., Appellant’s Brief at 20; Appellant’s Reply Brief at 1.

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Because the trial court stated at the suppression hearing that it was

denying Appellant’s motion to suppress based on Trooper Dressler’s

observation that Appellant violated Section 3309(1) (driving on roadways

laned for traffic – driving within a single lane), we address that determination

first. See footnote 1, supra. Section 3309(1) provides that: Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply:

(1) Driving within single lane.--A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.

75 Pa.C.S. § 3309(1).

Appellant argues that Trooper Dressler “did not have probable cause to

stop [Appellant] for violating [Section] 3309 based on [Appellant’s] brief and

singular crossing of the fog line. The trial court erred when it did not suppress

the traffic stop based on the lack of probable cause to initiate the stop.”

Appellant’s Brief at 12.

It is well-established that, “[w]here a vehicle stop has no investigatory

purpose, the police officer must have probable cause to support it.”

Commonwealth v. Enick, 70 A.3d 843, 846 (Pa. Super. 2013) (citing

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en

banc)) (footnote omitted). Here, Trooper Dressler said he stopped Appellant

for “failing to maintain the lane [pursuant to Section 3309(1)], which is what

I witnessed in my side-view mirror, and I believe [Section] 3327, which is the

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move over law.” N.T. at 22. Trooper Dressler did not represent that he pulled

over Appellant because he suspected Appellant was driving under the

influence and, thus, the stop was not for an investigatory purpose. As such,

the stop is legal only if Trooper Dressler possessed probable cause.2

To establish probable cause, “[t]he officer must be able to articulate

specific facts possessed by him at the time of the questioned stop, which would

provide probable cause to believe that the vehicle or the driver was in some

violation of some provision of the Vehicle Code.” Enick, 70 A.3d at 846 n.3

(citations omitted). “Probable cause does not require certainty, but rather

exists when criminality is one reasonable inference, not necessarily even the

most likely inference.” Id. (citations omitted).

Appellant asserts that “[t]he record shows that [Appellant] at most

crossed the fog/berm line once prior to being pulled over by Trooper Dressler.”

Appellant’s Brief at 12. He stresses that “[t]his Court has held that erratic

driving alone does not provide probable cause to execute a traffic stop.” Id.

at 14. In support, he argues: In [Commonwealth v.] Battaglia, [802 A.2d 652 (Pa. Super. 2002),] the defendant was weaving within his lane of travel when the officer initially noticed his driving. Id. at 654. At first[,] the defendant was merely weaving in his lane and was not seen to be crossing either the center line or the berm line. Id. Upon noticing this[,] the officer began following the defendant. Id. While following the vehicle[,] the officer noticed the defendant was driving five to ten miles below the speed limit of 35 miles per hour. ____________________________________________

2 The Commonwealth agrees that Trooper Dressler needed probable cause to stop Appellant for the traffic code violations he observed. See Commonwealth’s Brief at 10-12.

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The [o]fficer in Battaglia also saw the defendant make a wide right turn onto an on[-]ramp toward a highway. Id.

The trial court in Battaglia granted suppression based on the lack of probable cause. Id. In Battaglia, this Court upheld the suppression based on the Pennsylvania Supreme Court’s ruling in Commonwealth v. Gleason, … 785 A.2d 983 ([Pa.] 2001). Id. at 656. In Gleason, the [C]ourt held that crossing the berm line two or three times, without more, could not establish probable cause to justify a traffic stop based on the driving[-]within[- ]lanes[-]marked[-]for[-]travel statute. [Gleason, 785 A.2d at 989 (Pa. 2001)].[3]

This Court applied the holding of Gleason in Commonwealth v. Garcia, 859 A.2d 820 (Pa. Super. 2004)[,] to a situation in which a defendant crossed the fog line twice. This Court held:

But a close reading of the Gleason rationale, combined with careful attention to the facts of that case, lead us to conclude that where a vehicle is driven outside the lane of traffic for just a momentary period of time and in a minor manner, a traffic stop is unwarranted. Thus, … Gleason’s crossing of the berm line on two occasions for a second or two were inadequate to support a traffic stop, while [the defendant’s] repeated weaving within his lane, coupled with his driving over the center double lines and the berm line four or five times, provided probable cause to support a lawful traffic stop[ in Commonwealth v. Linblom, 854 A.2d 604 (Pa. Super. 2004)].

Garcia, 859 A.2d at 823.

Appellant’s Brief at 14-15.

In addition, Appellant disputes the trial court’s factual finding that

Appellant swerved off the lane and almost hit Trooper Dressler’s vehicle. See

id. at 15. Appellant contends that the dash cam video “makes it clear that ____________________________________________

3 We note that there were no other vehicles on the roadway in Gleason. See Gleason, 785 A.2d at 985. Thus, in finding that the stop was not justified, the Gleason Court recognized the lack of any evidence at the suppression hearing that the defendant’s driving created a safety hazard to support a Section 3309(1) violation. See id. at 989.

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[Appellant] was traveling on the correct side of the fog line at the time he

passed the traffic stop.” Id. Appellant also points out that Trooper Dressler

testified that “he believed [Appellant] stayed one or two feet away from his

vehicle while crossing the fog line and passing the initial traffic stop.” Id. at

16 (citing N.T. at 14). Appellant says that, pursuant to Gleason, “a

defendant’s passing of the line must create a safety hazard to violate the

statute.” Id. However, he says that, “[i]n the case at hand[,] there was no

apparent safety hazard created by [Appellant’s] crossing of the fog line when

[Appellant] corrected his vehicle prior to passing the initial traffic stop.” Id.

Thus, Appellant maintains that — to the extent the trial court credited Trooper

Dressler’s assertion that Appellant’s momentary crossing of the fog line was

too close to his vehicle, creating a safety hazard — such a finding is not

supported by the record. See id. at 16-17.

We reject Appellant’s argument. At the suppression hearing, Trooper

Dressler testified that, “[w]hile I was looking in my side mirror, I observed

[Appellant’s] sedan swerve over behind me, swerve over the white line. …

[T]o me[,] it appeared the vehicle was about to strike my vehicle. The vehicle

then s[w]erved back over[,] back into his lane[,] in the right lane[,] and

passed me.” N.T. at 9; see also id. at 14 (“I’m looking in my side mirror for

vehicles who are failing to move over to the left lane, at this time I think I

observe the sedan begin to swerve towards my vehicle, cross over the white

line, the white dash line that you can see right there, and, yep, you just saw

it pass right there.”); id. at 22 (“I witnessed in my side mirror, like I said

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before, [Appellant’s vehicle] swerve over with [its] right tires passing the

white line that you see right there, and almost strike my vehicle, and you saw

it clear as day in the video that [Appellant] was much closer than the other

two vehicles.”). Trooper Dressler also described that Appellant’s vehicle “was

very close to my vehicle and the vehicle in front of me[,]” and that, when

Appellant’s vehicle passed by, “[it was] within a foot or two of striking my

vehicle and the vehicle in front of me.” Id. at 14. While Appellant emphasizes

that he was on the correct side of the fog line when he passed Trooper Dressler

and stayed one or two feet away from striking Trooper Dressler’s vehicle, such

arguments do not undermine Trooper Dressler’s testimony that he saw, from

his side mirror, Appellant swerve out of the lane behind him and nearly hit his

parked patrol vehicle. The fact that a collision, fortunately, did not occur does

not mean that Appellant’s failure to maintain his lane did not create a safety

hazard.4

Given that Appellant’s failure to maintain his lane created a safety

hazard, we distinguish his case from that of the defendants in Gleason,

Garcia, and Battaglia. As the trial court aptly discerned: The Superior Court in Garcia held that “[w]here a vehicle is driven outside the lane of traffic for just a momentary period of time and ____________________________________________

4 Moreover, upon our own review of the dash cam video, we agree with the trial court that “[t]he fact that the swerving of [Appellant’s] vehicle where he nearly hit the [t]rooper’s vehicle could not be seen on the dash cam is of no moment.” TCO at 4. As the trial court observed, “[t]he [t]rooper indicated that he saw that from his side[-]view mirror and, as a result, that would not have been captured on the dash cam, which only captured the front view.” Id.

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in a minor manner, a traffic stop is unwarranted.” … Garcia, 859 A.2d [at] 823 … (emphasis added). In Garcia, the defendant drove over the fog line twice within the space of two blocks in response to another vehicle coming toward him in the opposite lane. However, the instant case is distinguishable from Garcia in that not only did [Appellant] cross the fog line, when he did so, he narrowly missed hitting the [t]rooper’s vehicle. This created a risk of harm not only to himself, but to the [t]roopers parked along the side of the road as well. Cf. Commonwealth v. Chernosky, … 874 A.2d 123, 128 (Pa. Super. 2005), appeal denied, … 902 A.2d 1238 (Pa. 2006) (police had probable cause where [the] defendant crossed both [the] center and fog lines more than once and narrowly missed hitting telephone pole).

TCO at 4-5. We agree with the trial court’s analysis. Accordingly, we conclude

that the trial court properly denied Appellant’s motion to suppress and,

therefore, we affirm Appellant’s judgment of sentence.5

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/31/2022

5Given our disposition, we need not address whether the trial court erred in denying Appellant’s motion to suppress the traffic stop due to a lack of probable cause to stop his vehicle under Section 3327.

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