Com. v. Hasanhodzic, S. ( 2018 )

J-A11028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SELVER HASANHODZIC :
:
Appellant : No. 1684 MDA 2017
Appeal from the Judgment of Sentence October 11, 2017
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0002272-2016
BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 20, 2018
Appellant Selver Hasanhodzic appeals from the judgment of sentence
following his conviction for driving under the influence of alcohol (DUI)-general
impairment.1 Appellant claims that the trial court erred in denying his pre-
trial motion to suppress. We affirm.
We state the relevant facts from the suppression hearing as follows. On
October 7, 2016, at approximately 5:10 a.m., Pennsylvania State Troopers
Cory Blowers and Lucas J. Hull were traveling northbound when they observed
an oncoming vehicle, traveling southbound. As the vehicle approached the
troopers’ vehicle, the driver, later identified as Appellant, activated the high-
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(a)(1).
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beam headlights for approximately one second.2 Based on that observation,
the troopers initiated a traffic stop for a violation of 75 Pa.C.S. § 4306, which
requires motorists to use low beam headlights when approaching an oncoming
vehicle within 500 feet.
Appellant was subsequently arrested and charged with two counts of
DUI, one count of careless driving, and one count of failure to use low beam
lights.3 On February 2, 2017, Appellant filed an omnibus pre-trial motion to
suppress claiming that the troopers lacked probable cause to believe that he
violated section 4306. Specifically, Appellant asserted that he flashed his high
beams at the troopers because he believed the troopers’ had their high beams
activated and that such conduct was permissible under section 4306. The trial
court denied Appellant’s motion after a hearing on April 17, 2017.
Following a stipulated bench trial on August 18, 2017, the court found
Appellant guilty of DUI–general impairment (second offense). See Trial Ct.
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2 At the suppression hearing, Trooper Hull initially stated that Appellant
flashed his high beams twice and that Appellant’s high beams remained on
when he passed the police vehicle. N.T., 4/17/17, at 18. However, after
viewing the motor vehicle recording (MVR), the trooper clarified that Appellant
did not leave his high beams on, but instead flashed his high beams at them
once. Id. at 19-20. The trial court, which also reviewed the MVR, found that
Appellant flashed his high beams at the troopers’ vehicle one time. Trial Ct.
Op., 10/16/17, at 23.
3 75 Pa.C.S. §§ 3802(a)(1), 3802(b), 3714(a), and 4306(a).
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Order, 8/18/17. On October 11, 2017, the trial court sentenced Appellant to
five days to six months of incarceration.
Appellant filed a timely notice of appeal on October 27, 2017. That same
date, the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement within
twenty-one days of the order. On November 30, 2017, Appellant filed an
untimely Rule 1925(b) statement.4
The trial court filed a Rule 1925(a) opinion addressing Appellant’s issues
on December 12, 2017. The trial court opined:
The troopers observed [Appellant] utilize his high[]beams while
approaching their cruiser, and within 500 feet thereof. Trooper
Hull credibly testified that he was not operating his cruiser with
the high[]beam lights activated at that time. Finally, there were
no road hazards or emergency situations in the roadway which
would, within the knowledge/perception of the troopers at the
time in question, move the observed violation into the realm of
exception set forth in 75 Pa.C.S. § 4306(b)(2).
The thrust of [Appellant’s] argument is founded in the idea that
he was flashing his high[]beams because the troopers were
traveling with their high[]beams activated towards him, or he
perceived them to be. If this appeal was a challenge to a
conviction for violation 75 Pa.C.S. § 4306, his argument would fall
to the weight this court assigned to [Appellant’s] testimony. It is
not, however, relevant to the question of what was within the
knowledge of the troopers at the point they decided to stop
[Appellant’s] vehicle, based upon their observations and in
consideration of their experience and training.
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4 The late filing of a Rule 1925(b) statement constitutes per se ineffectiveness
of counsel and does not result in waiver. See Pa.R.A.P. 1925(c)(3);
Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009). Because the
trial court has filed an opinion addressing the issues in Appellant’s untimely
1925(b) statement, we will consider the merits of the issues presented on
appeal. See Burton, 973 A.2d at 433.
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Trial Ct. Op., 12/12/17, at 9-10.
Appellant raises the following questions on appeal:
1. Did the [trial] [c]ourt err in denying [Appellant’s] [o]mnibus
[m]otion where members of the Pennsylvania State Police
stopped [Appellant’s] vehicle simply because, and only
because, [Appellant] flashed his high beam lights at the
oncoming Pennsylvania State Police cruiser for approximately
one second, where [Appellant] had reason to believe that the
Pennsylvania State Police vehicle was driving with continuous
high beams on and which was, in fact, blinding [Appellant]; and
where [Appellant]’s actions were solely for the purposes of
warning the oncoming vehicle that the driver's behavior was
causing a dangerous condition?
2. Was the fact that the State Police Troopers may have been
unaware of the purpose of [Appellant]’s actions relevant and
sufficient where [Appellant] was compliant with 75 Pa.C.S. §
4306?
Appellant’s Brief at 7. Appellant’s two issues are related, and we address
them jointly.
Appellant contends that the trial court erred in denying his suppression
motion because the troopers did not have probable cause to stop his vehicle.
Id. at 10. Specifically, he argues that the troopers had no reason to believe
that he violated Section 4306(a) when he “merely flashed his high beams at
the police officers for approximately one second.” Id. In support, Appellant
claims that Section 4306 contains an exception that was applicable to his
conduct. Id. at 13-15 (citing 75 Pa.C.S. § 4306(c)). Appellant suggests that
the trial court focused too heavily on the perceptions of the troopers and the
facts within their knowledge at the time of the stop. Id. at 14-15. Appellant
argues that section 4306 instead required the troopers to consider why
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Appellant was flashing his lights at them, namely, Appellant’s belief that the
troopers’ high beams were activated. Id. at 15.
Additionally, Appellant suggests:
To find to the contrary of the above would lead to absurd results,
and would allow [the police] to simply stop any vehicle that flashes
its lights within 500 feet of any vehicle, simply because it
occurred, as long as the Trooper himself is not aware of an
emergency or other dangerous or hazardous condition ahead. This
would include situations that occur on a daily basis, including
altruistic acts such as flashing the headlights to allow someone to
proceed before another at a stop sign or to enter the roadway
from a business driveway. The entire purpose of the exception to
75 [Pa.C.S. §] 4306 would be voided by the lower court’s ruling.
Id. at 16-17.
It is well settled that our standard of review from an order denying 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, as here, 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.
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Moreover, appellate 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. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (citations
and quotations omitted).
Section 4306 of the Motor Vehicle Code provides, in pertinent part:
(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.
***
(c) Exception—
***
(2) Nothing in this section shall limit drivers from flashing
high beams at oncoming vehicles as a warning of roadway
emergencies or other dangerous or hazardous conditions
ahead.
75 Pa.C.S. § 4306(a), (c)(2) (emphases added).
By way of a brief background to section 4306, the Pennsylvania
Supreme Court has held that a driver did not violate section 4306, when,
during the daytime, the driver flashed his high beams to “warn other drivers
of the presence of police that were enforcing the speed limit.”
Commonwealth v. Beachey, 728 A.2d 912, 912-13 (Pa. 1999) (reversing
the driver’s conviction for violating section 4306 and reasoning that when read
in pari materia with the rule that headlamps are required at night or in
unfavorable conditions, section 4306 did not apply to daytime uses of high
beams). The Beachey Court emphasized that the policy underlying section
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4306 was “to reduce the obvious safety hazard that exists when a driver
suffers momentary blindness upon being subjected even very briefly to the
intense brightness of high beam lamps.” Id. at 913.
In Commonwealth v. Bush, 166 A.3d 1278 (Pa. Super. 2017), the
defendant was convicted of various offenses after a state trooper stopped him
for a violation of section 4306. Bush, 166 A.3d at 1280. On appeal, the
defendant asserted that he was not required to dim his lights because a
guardrail and concrete barrier separated his vehicle from the trooper’s vehicle.
Id. at 1284. The Bush Court rejected that argument noting, in part, that the
plain language of section 4306(a) gives rise to a traffic violation “whenever
the driver approaches an oncoming vehicle within 500 feet and does not use
the vehicle’s low beam lights.”5 Id.
This Court has held that probable cause is required for a traffic stop
based on a violation of Section 4306(a).6 Id. at 1282. Our Supreme Court
has defined probable cause as follows:
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5 We note, however, that the Bush Court did not address the statutory
exception upon which Appellant currently relies. See Bush, 166 A.3d at 1283
n.2.
6 The Vehicle Code provides that “[w]henever a police officer . . . has
reasonable suspicion that a violation of this title is occurring or has occurred,
he may stop a vehicle.” 75 Pa.C.S. § 6308(b). However, the reasonable
suspicion standard applies only to stops that serve an investigatory purpose.
Commonwealth v. Feczko, 10 A.3d 1285, 1290 (Pa. Super. 2010). When
the suspected violation of the Vehicle Code does not require investigation,
probable cause is required. Id. ((quoting Commonwealth v. Chase, 960
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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, 101 A.3d 706, 721 (Pa. 2014) (citation omitted).
We further note that
[p]robable cause does not require certainty, but rather exists
when criminality is one reasonable inference, not necessarily even
the most likely inference. . . . [W]hile an actual violation of the
[Vehicle Code] need not ultimately be established to validate a
vehicle stop, a police officer must have a reasonable and
articulable belief that a vehicle or driver is in violation of the
[Vehicle Code] in order to lawfully stop the vehicle.
Commonwealth v. Spieler, 887 A.2d 1271, 1275 (Pa. Super. 2005)
(citations and quotation marks omitted).
In the instant case, Trooper Hull testified that Appellant flashed his high
beams while approaching the troopers’ vehicle. See N.T., 4/17/17 at 18. He
further testified that based on his knowledge and experience, he estimated
that Appellant’s vehicle was within 500 feet of the troopers’ vehicle at the time
the high beams were used. Id. Based on those observations, Trooper Hull
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A.2d 108, 115–16 (Pa. 2008) (“[A] vehicle stop based solely on offenses not
investigable cannot be justified by a mere reasonable suspicion. . . . An officer
must have probable cause to make a constitutional vehicle stop for such
offenses”)).
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concluded that Appellant was in violation of section 4306, and he executed a
traffic stop on that basis. Id.
Thus, our review reveals that Trooper Hull articulated specific facts that
provided probable cause to believe Appellant violated section 4306 of the
Motor Vehicle Code and which justified the traffic stop. See Martin, 101 A.3d
at 721. We also note that although an actual violation of the Motor Vehicle
Code need not be ultimately established to constitute probable cause, Trooper
Hull confirmed that there were no observable hazards at the time of the stop
that justified Appellant’s use of his high beams. Additionally, the trooper
confirmed that his headlights, while bright, were on the low setting when
Appellant flashed his high beams. Thus, Appellant’s specific argument—i.e.,
that he was justified in “flashing” his high beams at the troopers’ vehicle under
a mistaken belief that the troopers were using their high beams—merits no
relief. See Spieler, 887 A.2d 1275.
For all of the aforementioned reasons, we agree with the trial court’s
conclusion that based on Trooper Hull’s observations at the time of the stop,
probable cause existed to justify the traffic stop of Appellant’s vehicle.
Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/20/2018
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