Com. v. Comfort, Z ( 2014 )

J-A15027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ZACHARY COMFORT
Appellant No. 3185 EDA 2013
Appeal from the Judgment of Sentence November 15, 2013
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001757-2013
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 29, 2014
Zachary Comfort appeals from the judgment of sentence entered in
the Court of Common Pleas of Chester County following his conviction for
driving under the influence of a controlled substance, 75 Pa.C.S. §
motion to suppress. We affirm.
State Troopers Zachary Fronk and Anthony Lewis were conducting
routine patrol in an unmarked vehicle when they observed Comfort driving.
approximately one mile, the troopers used the speedometer in the patrol car
to determine that Comfort was traveling eighty (80) miles per hour in an
area where the posted speed limit was fifty-five (55) miles per hour. The
troopers initiated a traffic stop.
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were dilated and his eyes were glassy and bloodshot. Comfort admitted to
smoking marijuana earlier in the day and consented to a blood draw, which
blood tested positive for the presence of marijuana.
Comfort was arrested and charged with driving under the influence of
a controlled substance,1 failure to obey traffic control devices,2 and careless
driving.3 On August 16, 2013, Comfort filed a motion to suppress, arguing
the troopers lacked probable cause to stop his vehicle because the
Commonwealth did not prove the accuracy of the speedometer testing
equipment
stipulated fact hearing on
On November 15, 2013, the trial court held a stipulated fact trial, after
which it found Comfort guilty of DUI controlled substance. Comfort was
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1
75 Pa.C.S. § 3802(d).
2
75 Pa.C.S. § 3111(a).
3
75 Pa.C.S. § 3714(a).
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sentenced to seventy- On appeal,
Comfort, raises one issue for our review:
Whether the suppression court erred by denying
Our standard of review for an order denying a motion to suppress is
well established.
findings are supported by the record and whether the legal
conclusions drawn therefrom are correct. We may consider the
evidence of the witnesses offered by the Commonwealth, as
verdict winner, and only so much of the evidence presented by
[the] defense that is not contradicted when examined in context
of the record as a whole. We are bound by facts supported by
the record and may reverse only if the legal conclusions reached
by the court were erroneous.
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006).
Comfort argues the suppression court erred in finding the troopers had
reasonable suspicion to stop Comfort because no facts suggest this was an
investigable offense (i.e., the troopers could not have discovered anything
the troopers needed probable cause in order to lawfully perform a traffic
stop. Comfort further argues probable cause did not exist at the time of the
stop because the Commonwealth failed to prove that the speedometer used
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esolution of this
appeal.
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in the patrol vehicle was accurate because it did not prove the accuracy of
the equipment used to test the speedometer.
We note first that Comfort is correct that the applicable standard is the
more stringent one of probable cause. The troopers stopped Comfort for a
speeding violation, not for suspected DUI. The Commonwealth concedes
that probable cause is the applicable standard. See
In Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010)
potential of a vehicle stop based on a reasonable suspicion of DUI as
Id. at
1289 (citing Commonwealth v. Sands, 887 A.2d 261, 270 (Pa. Super.
2005)). Whereas a vehicle stop for suspected DUI may lead to further
incriminating evidence such as an odor of alcohol or slurred speech, a stop
for suspected speeding is unlikely to lead to further evidence relevant to that
offense. Id. Therefore,
cannot be justified by a mere reasonable suspicion, because the
purposes of a Terry [5] stop do not exist maintaining the status
quo while investigating is inapplicable where there is nothing
further to investigate. An officer must have probable cause
to make a constitutional vehicle stop for such offenses.
Id. at 1290 (quoting Commonwealth v. Chase, 960 A.2d 108, 116 (Pa.
2008) (emphasis added)). See also Commonwealth v. Landis, 89 A.3d
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Terry v. Ohio, 392 U.S. 1 (1968).
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694 (Pa. Super. 2014) (showing of probable cause necessary to justify police
obey roadway laned for traffic, where there was no express indication that
officer stopped defendant in order to conduct additional investigations into
driving under influence (DUI) or other impairments of ability to drive safely);
Chase, supra (reaffirming probable cause standard for non-investigative
detentions of suspected Vehicle Code violations).
In Feczko
§ 3309. We held, therefore, that the vehicle stop could be constitutionally
valid only
the time of the questioned stop, which would provide probable cause to
believe that the vehicle or the driver was in violation of some provision of
Feczko, 10 A.3d at 1291. We also held that the
median line and the fog line created probable cause to suspect a violation of
section 3309. Id.
The analysis in Feczko is applicable here. After obser
vehicle at a consistent distance for approximately one mile, the troopers
determined that Comfort was traveling at a speed of 80 miles per hour in an
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area where the posted speed limit was 55 miles per hour.6 When the
troopers stopped Comfor
regarding the speeding violation. Pursuant to Feczko, therefore, the
troopers needed probable cause to believe that Comfort violated the Vehicle
Code. 75 Pa.C.S. §§ 3111(a), 3714(a). Since the troopers were able to
articulate facts that established an unequivocal violation, we conclude that
probable cause existed in this case for a lawful traffic stop. See
Commonwealth v. Gleason, 785 A.2d 983, 986 (Pa. 2001) (in deciding
whether police officer has probable cause to conduct traffic stop for violation
of Vehicle Code, court need only rely on specific facts articulated by officer
to establish that vehicle or driver was in violation of some provision of
Vehicle Code); Commonwealth v. Enick, 70 A.3d 843 (Pa. Super. 2013)
(holding officer had probable cause to stop vehicle after observing vehicle
briefly cross double yellow line into oncoming traffic).
Comfort also argues that because the Commonwealth failed to produce
documentation verifying the accuracy of the speedometer testing equipment,
the troopers lacked probable cause to perform the initial traffic stop. We
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For a police officer to ascertain the speed of a motor vehicle using a
distance no less than three-tenths (3/10) of a mile. See 75 Pa.C.S. §
--The rate of speed of any vehicle may
be timed on any highway by a police officer using a motor vehicle equipped
with a speedometer. In ascertaining the speed of a vehicle by the use of a
speedometer, the speed shall be timed for a distance of not less than three-
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find this argument unpersuasive. We agree with the Commonwealth that
the appellant is conflating whether the troopers had probable cause at the
time of the stop with whether the Commonwealth had sufficient evidence at
trial to sustain a conviction against Comfort for speeding. The officer is not
required to prove the violation in order to make a lawful traffic stop; the
sufficiency of the evidence required to sustain a speeding conviction is
irrelevant to the quantum of cause an officer needs to conduct a lawful
vehicle stop.7
Additionally, we point out that the parties stipulated that Comfort was
timed for a distance of one mile and was clocke
speedometer going 80 miles per hour in a 55 mile per hour zone. See
Stipulation in Lieu of Testimony and Other Evidence, 9/5/2013, at ¶2 (E)-
tested and found accurate on November 28, 2012, id. at ¶2 (I)-(J), and a
copy of the certificate of accuracy was attached to the Stipulation as Exhibit
because the Commonwealth did not present a certificate of accuracy for the
actual testing equipment, though an interesting argument, is of no moment
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We note that at trial the Commonwealth withdrew the summary charges of
careless driving and obedience to traffic control device, and proceeded only
on the DUI charge, 75 Pa.C.S. § 3805(d)(1). See N.T. Trial, 11/15/2013, at
11.
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here. As we noted above, the Commonwealth withdrew the summary
charges of careless driving and obedience to traffic control device.
In light of the foregoing, we agree with the Commonwealth that the
motion to suppress evidence. Hughes, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2014
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