Com. v. Bush, J. , 166 A.3d 1278 ( 2017 )

J-A11033-17
2017 PA Super 232COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE RAY BUSH :
:
Appellant : No. 1765 MDA 2016
Appeal from the Judgment of Sentence September 29, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007979-2015
BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JULY 19, 2017
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of York County following Appellant Jesse Ray Bush’s
conviction in a non-jury trial on the charges of possession of drug
paraphernalia, driving under the influence of alcohol or a controlled
substance (“DUI”), driving under suspension as a habitual offender, and
driving under suspension-DUI related.1 Appellant’s sole claim is that the
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*
Former Justice specially assigned to the Superior Court.
1
35 P.S. 780-113(a)(32); 75 Pa.C.S.A. §§ 3802(a)(1), 6503.1, and
1543(b)(1.1)(i), respectively. Appellant was also charged with DUI under 75
Pa.C.S.A. §§ 3802(d)(1)(iii) and (d)(3); however, the Commonwealth nol
prossed the charges. Further, Appellant was charged with the summary
offenses of driving on roadways laned for traffic, 75 Pa.C.S.A. § 3309(1),
and use of multiple-beam road lighting equipment, 75 Pa.C.S.A. § 4306(a);
however, the trial court indicated that, in light of its findings of guilt on
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police officer did not have probable cause or reasonable suspicion to stop his
vehicle, and therefore, the lower court erred in denying his pre-trial motion
to suppress the physical evidence seized by the police. After a careful
review, we affirm.
The relevant facts and procedural history are as follows: Appellant was
arrested, and on April 11, 2016, he filed a counseled pre-trial motion
seeking to suppress the physical evidence seized by the police following the
stop of his vehicle. Specifically, Appellant averred the stop of his vehicle
was illegal since the police officer had neither probable cause nor reasonable
suspicion to initiate the stop.
On June 28, 2016, the matter proceeded to a suppression hearing at
which the sole witness was Pennsylvania State Police Trooper Raymond W.
Rutter, who testified that he has been a trooper for approximately three
years. N.T., 6/28/16, at 4. He indicated that, on November 1, 2015, at
approximately 3:15 a.m., he was on duty and traveling in the left-hand lane
on I-83 southbound near the Maryland state line when he observed the
following:
[A] SUV, a dark colored SUV, which was traveling northbound,
which had passed me, which had its high beams on. While that
[SUV] had passed me there was another vehicle—that [SUV]
was traveling in the right lane, there was a smaller sedan which
was traveling in the left-hand lane, passing that [SUV] that was
_______________________
(Footnote Continued)
various charges, it would “not make a finding of guilt” on the summary
offenses. N.T., 9/29/16, at 3.
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in the right which had its high beams on, and then I spun around
just north of the Maryland line, the divider, and approached that
[SUV] which I saw [with] its high beams on from the rear.
Id. at 6-7.
When asked by the prosecutor how he could “tell that the high beams
were on[,]” Trooper Rutter answered that the lights “were bright to me
looking at them.” Id. at 7. Trooper Rutter indicated that his experience as
a trooper assisted him in making his determination. Id.
Moreover, when the prosecutor asked Trooper Rutter how close he was
to the SUV when he first noticed the high beams were activated, Trooper
Rutter testified that he was within 300 feet. Id. at 8. He further indicated
that he “actually pas[sed] [the SUV] going south and they were still
activated. So whatever the distance from two lanes over would be on the
interstate, plus the center.” Id.
Trooper Rutter clarified that, when he turned his police vehicle around
at the highway divider and proceeded northbound, he did so with the intent
of stopping Appellant’s SUV “for the violation of the high beams.” Id. He
indicated that, once he caught up to the SUV, he did not immediately stop it,
but he continued to follow it as he knew that the welcome center, which
would be a safe place to stop the SUV, was “just north of [his] location.” Id.
As he followed the SUV to the welcome center, Trooper Rutter noticed
the vehicle “cross over the fog lines two times[.]” Id. at 8-9. Trooper
Rutter testified that, at this point, in addition to the high beams traffic
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violation, Trooper Rutter suspected that Appellant might be DUI. Id. at 10-
11. He clarified, however, that even if Appellant’s SUV had not crossed the
fog lines twice, he still intended to stop the vehicle “for the high beams
violation." Id. at 11. Trooper Rutter indicated that he stopped Appellant’s
SUV, and charged Appellant with numerous crimes, including DUI-related
charges and the high beams violation. Id. at 12.
On cross-examination, Trooper Rutter clarified that, in the area where
the incident occurred, between the northbound and southbound lanes on I-
83, there was a guardrail at the height of the concrete barriers. Id. at 13-
14, 16. He confirmed that Appellant was driving in the northbound right-
hand lane, and he was traveling in the southbound left-hand lane; the
divider between the northbound and southbound lanes was approximately
sixty feet in width. Id. at 16. Trooper Rutter testified that the highways
were straight without curves in this area, so the northbound and southbound
vehicles passed each other. Id.
Trooper Rutter reiterated that when he first noticed Appellant’s SUV
traveling northbound it “appeared to [him] that it had the high beams on.”
Id. at 14. He noted that he has “made numerous stops on high beam
violations, and [Appellant’s SUV] appeared to be [sic] high beams on to
[him.]” Id. at 14-15. Further, Trooper Rutter noted that, based on his
training and experience, Appellant’s SUV had its high beams on. Id. at 15.
He testified that Appellant’s SUV’s lights “affected [his] eyes, they were
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bright into [his] eyes, but it didn’t make [him] swerve or crash or anything
like that.” Id. He noted that the sedan, which was passing Appellant’s SUV,
did not have its high beams activated. Id. at 16. Trooper Rutter testified
that he is “pretty good” about “picking out” which vehicles have their high
beams activated. Id. at 20. He reiterated that from his “training and
experience it appeared to be high beams and that’s why [he] initiated the
stop [of Appellant’s SUV].” Id. at 21.
At the conclusion of the hearing, the suppression court denied
Appellant’s motion to suppress, concluding that Trooper Rutter observed
Appellant’s SUV with its high beams improperly activated, and thus, he had
probable cause to stop Appellant’s SUV. Id. at 41-42. Subsequently,
following a non-jury trial, the trial court convicted Appellant of the offenses
indicated supra and sentenced him to an aggregate of nine and one-half
years to twenty years in prison. This timely appeal followed, and all
Pa.R.A.P. 1925 requirements have been met.
On appeal, Appellant contends that the stop of his SUV was illegal
since Trooper Rutter did not have the requisite probable cause or reasonable
suspicion to initiate a stop. Accordingly, he argues the trial court erred in
denying his pre-trial motion to suppress the physical evidence seized as a
result of the stop of his SUV.
The issue of what quantum of cause a police officer must possess in
order to conduct a vehicle stop based on a possible violation of the Motor
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Vehicle Code is a question of law, over which our scope of review is plenary
and our standard of review is de novo. Commonwealth v. Chase, 599 Pa.
80, 960 A.2d 108 (2008). “[A]ppellate courts are limited to reviewing only
the evidence presented at the suppression hearing when examining a ruling
on a pre-trial motion to suppress.” Commonwealth v. Stilo, 138 A.3d 33,
35-36 (Pa.Super. 2016) (citation omitted). Our Supreme Court has
declared:
[The] standard of review in addressing a challenge to a
trial court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When reviewing
such a ruling by the suppression court, we must 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....Where the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134 (2007)
(internal citations omitted). “It is within the suppression court’s sole
province as factfinder to pass on the credibility of witnesses and the weight
to be given their testimony.” Commonwealth v. Gallagher, 896 A.2d 583,
585 (Pa.Super. 2006) (quotation marks and quotation omitted).
Our analysis of the quantum of cause required for a traffic stop begins
with 75 Pa.C.S.A.§ 6308(b), which provides:
(b) Authority of police officer.—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,
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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) (bold in original). “Traffic stops based on a
reasonable suspicion: either of criminal activity or a violation of the Motor
Vehicle Code under the authority of Section 6308(b) must serve a stated
investigatory purpose.” Commonwealth v. Feczko, 10 A.3d 1285, 1291
(Pa.Super. 2010) (en banc) (citation omitted). For a stop based on the
observed violation of the vehicle code or otherwise non-investigable offense,
an officer must have probable cause to make a constitutional vehicle stop.
Feczko, 10 A.3d at 1291 (“Mere reasonable suspicion will not justify a
vehicle stop when the driver’s detention cannot serve an investigatory
purpose relevant to the suspected violation.”).
Here, the trial court found that Trooper Rutter credibly testified that he
stopped Appellant’s vehicle on the basis that Appellant had his high beams
activated in violation of 75 Pa.C.S.A. § 4306, use of multiple-beam road
lighting equipment. Since an investigation following the traffic stop would
have provided Trooper Rutter with no additional information as to whether
Appellant violated Section 4306, probable cause was necessary to initiate
the stop on this basis. See Commonwealth v. Slattery, 139 A.3d 221,
222-23 (Pa.Super. 2016) (holding that where the “vehicular stop is to
determine whether there has been compliance with the Commonwealth’s
vehicle code, it is incumbent upon the officer to articulate....probable cause
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to believe that the vehicle or the driver was in violation of some provision of
the code”) (citation omitted)); Feczko, supra.
Our Supreme Court has defined probable cause as follows:
Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
[stop], and of which he has reasonably trustworthy information,
are sufficient to warrant a man of reasonable caution in the
belief that the suspect has committed or is committing a crime.
The question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require only a
probability, and not a prima facie showing, of criminal activity.
In determining whether probable cause exists, we apply a
totality of the circumstances test.
Commonwealth v. Martin, 627 Pa. 623, 101 A.3d 706, 721 (2014)
(citation omitted) (emphasis in original). Pennsylvania law makes clear,
however, that a police officer has probable cause to stop a motor vehicle if
the officer observes a traffic code violation, even if it is a minor offense.
Chase, supra.Here, Trooper Rutter stopped Appellant’s SUV for a violation of Section
4306, which provides, in relevant part, the following:
§ 4306. Use of multiple-beam road lighting equipment
(a) Approaching an oncoming vehicle.-Whenever the driver
of a vehicle approaches an oncoming vehicle within 500 feet, the
driver shall use the low beam of light.
75 Pa.C.S.A. § 4306(a) (bold in original).2
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2
Section 4306 provides for exceptions related to emergency vehicles and
drivers flashing their high beams for purposes of warning oncoming vehicles
of danger; however, neither of these exceptions are implicated in the case
sub judice. See 75 Pa.C.S.A. § 4306(c).
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In construing Section 4306(a) to determine its meaning, we are
guided by the following legal precepts as set forth by our Supreme Court:
The purpose of statutory interpretation is to ascertain the
General Assembly’s intent and give it effect. 1 Pa.C.S.[A.] §
1921(a). In discerning that intent, the court first resorts to the
language of the statute itself. If the language of the statute
clearly and unambiguously sets forth the legislative intent, it is
the duty of the court to apply that intent to the case at hand and
not look beyond the statutory language to ascertain its meaning.
See 1 Pa.C.S.[A.] § 1921(b) (“When the words of a statute are
clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.”).
“Relatedly, it is well established that resort to the rules of
statutory construction is to be made only when there is an
ambiguity in the provision.” Oliver v. City of Pittsburgh, 608
Pa. 386, 11 A.3d 960, 965 (2011) (citations omitted).
Mohamed v. Com., Dep’t of Transp., Bureau of Motor Vehicles, 615 Pa.
6, 40 A.3d 1186, 1193 (2012). See Commonwealth v. Irwin, 769 A.2d
517, 521 (Pa.Super. 2001) (holding when language of a statute is clear and
unambiguous, it must be given effect in accordance with its plain and
common meaning).
Pursuant to the plain and clear language of Section 4306(a), a driver
commits a traffic code violation whenever the driver approaches an
oncoming vehicle within 500 feet and does not use the vehicle’s low beam
lights. In Irwin, supra, we noted that the term “approaches,” as used in
Section 4306(a), is defined as “to come nearer in space.” Irwin, 769 A.2d
at 522. Moreover, the dictionary definition of “oncoming” is “coming nearer
in time or space.” Webster’s Collegiate Dictionary 811 (10th ed. 1997).
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In the case sub judice, the trial court found that Trooper Rutter
credibly testified that, as he was driving in the southbound left-hand lane of
I-83, Appellant, who was driving his SUV in the northbound right-hand lane
of I-83, drove by Trooper Rutter with his SUV’s high beams activated. N.T.,
4/12/16, at 41. The trooper testified that Appellant’s SUV was within 300
feet of his cruiser. Id. at 8. He further testified that he had a clear view of
Appellant’s SUV’s lights; Appellant’s SUV’s lights were noticeably brighter
than the lights of the sedan, which passed Appellant’s SUV; and Appellant’s
SUV’s lights affected the trooper’s eyes. Id. at 15-16. Trooper Rutter
testified that he has made numerous stops based on high beam violations,
and based on his training and experience, he concluded Appellant did not
properly dim his lights when he passed by the trooper’s cruiser. Id. at 14,
21.
Based on the aforementioned, we conclude the trial court properly
determined that Trooper Rutter had probable cause to stop Appellant’s SUV
for a violation of Section 4306(a). Simply put, Appellant’s SUV approached
(came closer to) Trooper Rutter’s police cruiser as the cruiser was oncoming
(coming near to Appellant’s vehicle) within 500 feet, and Appellant did not
use the low beam of light.3
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3
Appellant specifically avers Trooper Rutter did not offer sufficient credible
testimony to establish probable cause to believe that Appellant, in fact, had
his SUV’s high beams activated when he drove by the trooper’s cruiser. See
(Footnote Continued Next Page)
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We find unavailing Appellant’s specific argument that he was not
required to dim his lights as his SUV did not approach an oncoming vehicle
as required for a violation of Section 4306(a). In this regard, Appellant
reasons that, since a guardrail and concrete barrier divided I-83’s
southbound lane in which Trooper Rutter was driving from the northbound
lane in which Appellant was driving, the SUV was not “approaching” and the
trooper’s cruiser was not “oncoming” for purposes of the statute.
As fully discussed supra, giving the statute’s express terms their plain
meaning, we disagree with Appellant’s argument. While the guardrail and
concrete barrier should be taken into consideration in determining whether
Appellant’s SUV approached within 500 feet of Trooper Rutter’s oncoming
police cruiser, the existence of such does not alter or negate the plain
language of the statue. Moreover, while the Legislature listed exceptions to
the use of high beams in Section 4306(c), it did not include a blanket
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(Footnote Continued)
Appellant’s Brief at 15-17. In this regard, he notes that vehicle lights have
varying degrees of brightness, and Trooper Rutter allegedly offered
contradictory reasons as to why he stopped Appellant’s vehicle. See id. As
indicated supra, the suppression court found Trooper Rutter’s testimony
regarding Appellant’s use of high beams to be credible. We are bound by
the suppression court’s credibility determination and factual findings, which
are supported by the record. See Eichinger, supra; Gallagher, supra.
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exception related to the use of high beams on a divided highway 4 as was
present in this case.
Further, we find unavailing Appellant’s reliance upon Commonwealth
v. Beachey, 556 Pa. 345, 728 A.2d 912 (199), in support of his argument
that he did not violate Section 4306(a). In Beachey, the appellant, who
was driving during the daylight hours of an overcast summer day, flashed
his high beams ten or more times to warn oncoming motorists of the
presence of a police radar unit. Id. at 347, 728 A.2d at 912. An officer
stopped the appellant’s vehicle and cited him with violating Section 4306(a).
This Court affirmed the appellant’s judgment of sentence.
In reversing and finding no violation of the high beams statute
occurred, our Supreme Court reasoned that “[a]lthough [Section 4306(a)]
does not specify its scope of application, reason requires that it be read in
connection with statutory language that sets forth the circumstances when
motorist are required to use their headlights.” Id. at 347, 728 A.2d at 913
(citing 1 Pa.C.S.[A.] § 1932 (statutes in pari materia are to be construed
together)). Accordingly, our Supreme Court examined 75 Pa.C.S.A. § 4302,
which requires motorists to use lighted head lamps between sunset and
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4
The Motor Vehicle Code defines “divided highway” as “[a] highway divided
into two or more roadways and so constructed as to impede vehicular traffic
between the roadways by providing an intervening space, physical barrier or
clearly indicated dividing section.” 75 Pa.C.S.A. § 102.
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sunrise, as well as when there is insufficient light due to “unfavorable
atmospheric conditions[.]”5 Based thereon, our Supreme Court held:
[S]ection 4302 sets forth the times when headlights must
be used, and [S]ection 4306(a) limits the use of high beams
during those times. If the two provisions were not read
together, application of [S]ection 4306(a) would not be limited
to the times specified in [S]ection 4302 and an absurd result
would follow. Specifically, [S]ection 4306(a)’s requirement that
motorists use their low beams whenever approaching another
vehicle within 500 feet would be applicable during the daytime.
Hence, a motorist would be in violation if, during daylight hours,
he failed to turn on his low beam headlights every time a vehicle
approached within 500 feet. In interpreting statutes, it is
axiomatic that the legislature did not intend an absurd or
unreasonable result. See 1 Pa.C.S.[A.] § 1922(a) (presumptions
in ascertaining legislative intent).
Beachey, 556 Pa. at 348, 728 A.2d at 913.
In the case sub judice, Appellant does not dispute that his high beams
violation occurred during the nighttime hours between sunset and sunrise.
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5
Section 4302 relevantly provides:
§ 4302. Periods for requiring lighted lamps
(a) General rule.-The operator of a vehicle upon a highway
shall display the lighted head lamps and other lamps and
illuminating devices required under this chapter for different
classes of vehicles, subject to exceptions with respect to parked
vehicles, at the following times:
(1) Between sunset and sunrise.
(2) Any time when, due to insufficient light or unfavorable
atmospheric conditions, including rain, snow, sleet, hail, fog,
smoke or smog, persons and vehicles on the highway are not
clearly discernible to the operator for a distance of 1,000 feet
ahead.
75 Pa.C.S.A. § 4302(a) (bold in original).
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Accordingly, Appellant was required to use his headlights pursuant to 4302,
and we conclude Beachey is distinguishable.
This does not end our inquiry, however, as Appellant suggests that
Beachey’s holding that Section 4306(a) must be read together with other
statutes so as to avoid an absurd result requires the courts to construe
Section 4306(a) in conjunction with 75 Pa.C.S.A. § 3345, pertaining to a
driver’s duty in meeting or overtaking a school bus.
In this regard, Appellant notes that Section 3345(a) requires “the
driver of a vehicle meeting or overtaking any school bus stopped on a
highway...[to] stop at least ten feet before reaching the school bus when the
red signal lights...are flashing and the side stop signal arms are activated[.]”
75 Pa.C.S.A. § 3345(a). Further, he notes the school bus statute provides
an exception from the stopping requirement, indicating “[t]he driver of a
vehicle upon a highway...with separate roadways need not stop upon
meeting or passing a school bus with actuated red signal lights which is on a
different roadway.” 75 Pa.C.S.A. § 3345(g).
Appellant reasons that Section 4306(a) must be read in connection
with Section 3345(g) so as to avoid an absurd result in the case sub judice.
In essence, he argues that if drivers are not required to stop for a school bus
on a highway with separate roadways then it would be absurd to require
drivers to use their low beams when approaching an oncoming car on a
divided highway. We disagree.
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Statues in para materia are those relating to the same matter. In re
Trust Under Deed of Kulig, 131 A.3d 494, 497 (Pa.Super. 2015); Black’s
Law Dictionary 807 (10th ed. 2004). While we agree with Appellant that, if
possible, statutes in para materia should be construed together, we disagree
with Appellant that Sections 4306(a) and 3345(g) are in para materia. The
statutes do not relate to the same matter and do not have a common
purpose. Whereas Section 4306 relates to drivers’ use of high beam
headlights, Section 3345 relates to drivers approaching school buses that
are transporting students. The statutes are fundamentally different and,
thus, Beachey’s recognition of the in pari materia principle does not require
that the highway with separate roadways exception contained in the school
bus statute be applied to the high beam statute as well.
Finally, we find unavailing Appellant’s argument that the legislative
intent of Section 4306(a), as recognized in Beachey, does not support the
finding of a violation of Section 4306(a) in the case sub judice. In Beachey
our Supreme Court opined that the language of Section 4306(a)
unambiguously and clearly sets forth the legislative intent of the statute, and
further, that such intent did not support a violation of the statute when
drivers use their high beams during normal, daytime driving. Specifically, in
Beachy, our Supreme Court held as follows:
The plain legislative intent of [S]ection 4306(a) was to
prevent motorists from facing excessive glare, so as to reduce
the obvious safety hazard that exists when a driver suffers
momentary blindness upon being subjected even very briefly to
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the intense brightness of high beam lamps. However, it is
inconceivable that the [L]egislature was concerned about the
midday use of high beams during periods when normal
atmospheric and lighting conditions make it impossible for
drivers to be blinded by headlight glare. We conclude, therefore,
that [S]ection 4306(a) was never intended to apply to the
midday use of one’s headlights. [The] [a]ppellant’s conviction
for the daytime use of his high beams cannot, therefore, be
sustained.
Beachey, 556 Pa. at 348, 728 A.2d at 913.
Here, unlike in Beachey, the safety hazard that Section 4306(a)’s
plain language seeks to prevent was present. The trial court found that
Trooper Rutter credibly testified that the guardrail and concrete barrier did
not prevent Appellant’s SUV’s high beams from shining into his eyes. In
fact, Trooper Rutter specifically testified that Appellant’s SUV’s lights
“affected [his] eyes, they were bright into [his] eyes[.]” N.T., 6/28/ 16, at
15. Thus, the excessive glare which Section 4306 seeks to prevent so as to
reduce the hazard that exists when a driver is momentarily blinded by the
brief, intense brightness of high beam lamps existed in this case, despite the
existence of the guardrail and concrete barrier between the northbound and
southbound lanes of I-83. Accordingly, we find no merit to Appellant’s final
claim.
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For all of the aforementioned reasons, we conclude that the facts of
this case6 presented probable cause of violation of Section 4306(a) for
purposes of the traffic stop of Appellant’s SUV. Further, Trooper Rutter
offered specific and articulable facts that provided probable cause that
Appellant violated the section. Accordingly, as the traffic stop was not
illegal, the trial court did not err in denying Appellant’s pre-trial suppression
motion. Accordingly, we affirm Appellant’s judgment of sentence.
Affirmed.
Judge Moulton joins the Opinion.
Judge Shogan files a Concurring Opinion to which P.J.E Stevens joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
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6
We recognize that “divided highways” in Pennsylvania exist with numerous
variations, including the dividing of roadways by intervening space with trees
and large physical barriers. We save for another day the issue of whether
Section 4306(a) may be violated in other factual scenarios not present in
this case.
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