Com. v. Pitzer, N. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
NICHOLAS PAUL PITZER
Appellant No. 685 MDA 2016
Appeal from the Judgment of Sentence April 18, 2016
in the Court of Common Pleas of Adams County Criminal Division
at No(s): CP-01-CR-0000718-2015
BEFORE: LAZARUS, RANSOM, AND FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 30, 2017
Appellant, Nicholas Paul Pitzer, appeals from the judgment of sentence
entered in the Adams County Court of Common Pleas of sixty months’
intermediate punishment for driving under the influence of alcohol (“DUI”).
Appellant contests the trial court’s denial of his motion to suppress evidence.
We affirm.
On March 29, 2015, following a traffic stop, Appellant was arrested
and charged with two counts of DUI and several summary offenses.1 On
August 19, 2015, the Commonwealth filed a criminal information charging
Appellant with DUI-highest rate of alcohol2 and DUI-general impairment.3
*
Former Justice specially assigned to the Superior Court.
1
The Commonwealth subsequently withdrew the summary offense charges.
2
75 Pa.C.S. § 3802(c). This was Appellant’s second DUI offense.
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Appellant filed a motion to suppress evidence based on a lack of reasonable
suspicion or probable cause to stop his vehicle. On December 29, 2015,
following an evidentiary hearing, the trial court denied Appellant’s motion to
suppress.
The trial court made the following findings of fact in its order denying
suppression:
1. On March 29, 2015, at approximately 1:58 a.m.,
Pennsylvania State Police Trooper Severin Thierwechter,
while on duty in a marked police vehicle and in full
uniform, was traveling west on State Route 234 in Adams
County, Pennsylvania.
2. While traveling through the intersection of State Route
234 and Yellow Hill Road, Trooper Thierwechter observed a
vehicle traveling north on Yellow Hill Road which appeared
to him to be in the left lane of travel.
3. A dash cam video in the trooper’s vehicle includes
evidence of a vehicle traveling north on Yellow Hill Road in
close proximity to the road’s intersection with State Route
234. The video does not corroborate or refute Trooper
Thierwechter’s observations.
4. At the location of the subject incident, State Route 234
travels in an east-to-west direction. Yellow Hill Road
connects with State Route 234 on the northern side of
State Route 234. Yellow Hill Road veers off at a greater
than 90 degree angle when traveling west on State Route
234. The road is a narrow road with a single yellow line
separating the lanes. There are no fog line markings nor
shoulder on either side of the road.
5. As Trooper Thierwechter’s observation occurred as he
was traveling near the junction with Yellow Hill Road, he
did not have sufficient time to make the turn onto Yellow
3
75 Pa.C.S. § 3802(a)(1).
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Hill Road. Rather, he stopped his vehicle and backed up to
the point of being able to make a right–hand turn on
Yellow Hill Road. The dash cam reveals Trooper
Thierwechter stopped his vehicle, backed up to turn onto
Yellow Hill Road, and began pursuit.
6. Trooper Thierwechter followed the vehicle briefly. While
following the vehicle, he observed it to be weaving within
its lane.
7. The dash cam video reveals that Yellow Hill Road is a
narrow road with curves and a slightly rolling topography.
It also reveals the subject vehicle to be a Ford 4x4 pick-up
truck. The video confirms some swerving within the lane of
travel. The video also reveals a lack of traveling in a
straight direction but rather [ ] weaving even on straight
portions of the roadway.
8. Trooper Thierwechter conducted a vehicle stop[,]
concerned that the vehicle’s travel in the wrong lane and
weaving required further investigation as to whether the
driver was impaired.
Order, 12/29/15, at 1-2.
The trial court explained that Trooper Thierwechter had reasonable
suspicion to stop Appellant’s vehicle:
Instantly, Trooper Thierwechter observed a vehicle
traveling entirely on the left side of a marked roadway.
Subsequent pursuit revealed the vehicle to be weaving
within its lane of travel. Independently, the weaving
within the lane was de minimis at best and, standing
alone, insufficient to objectively establish a reasonable
suspicion of criminal conduct. However, when coupled
with the earlier observation of the vehicle traveling in the
left lane of a two-lane roadway for no apparent reason at
1:58 a.m., Trooper Thierwechter had observed articulable
facts which justified further investigation. Unquestionably,
there are a variety of innocent explanations for the
observed conduct[,] including the lack of traffic on an
isolated country road or the de minimis nature of the
observations under the circumstances in which they
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occurred. Nevertheless, one would not expect under
normal circumstances to observe a vehicle traveling
entirely in the wrong lane of travel for no apparent reason.
While there are certainly explanations for the conduct,
there is also a reasonable articulable basis for Trooper
Thierwechter to stop the vehicle for further investigation as
to the legality of those reasons.
Id. at 3.
Appellant proceeded to a non-jury trial on February 18, 2016, and the
trial court found him guilty of the aforementioned DUI charges. On April 18,
2016, the trial court imposed sentence. On April 26, 2016, Appellant timely
appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises one issue in this appeal:
Whether the suppression court erred in denying
[Appellant’s] motion for suppression based upon a vehicle
stop where the physical evidence, comprised of an in-car
camera recording and photographs of the relevant area,
established that the police officer could not see the area
where the officer claims he did view the driving that
supported the basis of the vehicle stop.
Appellant’s Brief at 5.
This Court’s 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, [the
appellate court is] bound by [those] findings and may
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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 the courts below are subject to [ ]
plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015)
(citation omitted).
“The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d
889, 892 (Pa. Super. 2012). In Fourth Amendment jurisprudence, there are
three categories of interactions between citizens and the police:
The first [category] is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicions, but carries no official compulsion to stop or
respond. The second, an “investigative detention”, must
be supported by a reasonable suspicion; it subjects a
suspect to a stop and a period of detention, but does not
involve such coercive conditions as to constitute the
functional equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by probable
cause.
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)
(citation omitted). Reasonable suspicion
is a less stringent standard than probable cause necessary
to effectuate a warrantless arrest, and depends on the
information possessed by police and its degree of reliability
in the totality of the circumstances. In order to justify the
seizure, a police officer must be able to point to specific
and articulable facts leading him to suspect criminal
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activity is afoot. In assessing the totality of the
circumstances, courts must also afford due weight to the
specific, reasonable inferences drawn from the facts in
light of the officer’s experience and acknowledge that
innocent facts, when considered collectively, may permit
the investigative detention.
Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super. 2013) (citation
omitted).
The legislature has defined the level of suspicion required for vehicle
stops as follows:
Whenever a police officer . . . 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, proof of financial
responsibility, vehicle identification number or engine
number or the driver's license, or to secure other
information as the officer may reasonably believe to be
necessary to enforce the provisions of this title.
75 Pa.C.S. § 6308(b). In interpreting this provision, this Court has
concluded that a vehicle stop based solely on reasonable suspicion of a
motor vehicle violation “must serve a stated investigatory purpose . . .
[since, i]n effect, the language of Section 6308(b)—‘to secure such other
information as the officer may reasonably believe to be necessary to enforce
the provisions of this title’—is conceptually equivalent with the underlying
purpose of a Terry stop.” Commonwealth v. Feczko, 10 A.3d 1285, 1291
(Pa. Super. 2010) (en banc) (citations omitted). We examine the totality of
the circumstances in the course of reviewing whether an officer had
reasonable suspicion to stop a vehicle. Commonwealth v. Holmes, 14
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A.3d 89, 96 (Pa. 2011). This test “does not limit our inquiry to an
examination of only those facts that clearly indicate criminal conduct.
Rather, even a combination of innocent facts, when taken together, may
warrant further investigation by the police officer.” Commonwealth v.
Smith, 917 A.2d 848, 857 n.4 (Pa. Super. 2007) (citation and quotation
marks omitted).
Mere reasonable suspicion will not justify a vehicle stop “when the
driver’s detention cannot serve an investigatory purpose relevant to the
suspected violation.” Feczko, 10 A.3d at 1291. In this circumstance, the
officer must articulate specific facts that he has at the time of the stop which
provide probable cause to believe that the vehicle or the driver is in violation
of some provision of the Vehicle Code. Id.Illustrative of the reasonable suspicion and probable cause standards
are stops for speeding and DUI. If a vehicle is stopped for
speeding, the officer must possess probable cause to stop
the vehicle. This is so because when a vehicle is stopped,
nothing more can be determined as to the speed of the
vehicle when it was observed while traveling upon a
highway. On the other hand, if an officer possesses
sufficient knowledge based upon behavior suggestive of
DUI, the officer may stop the vehicle upon reasonable
suspicion of a Vehicle Code violation, since a stop would
provide the officer the needed opportunity to investigate
further if the driver was operating under the influence of
alcohol or a controlled substance. Compare
Commonwealth v. Enick, 70 A.3d 843, 846 (Pa. Super.
2013) (probable cause required to stop for failure to drive
on right side of roadway), Commonwealth v. Brown, 64
A.3d 1101, 1105 (Pa. Super. 2013) (probable cause
required to stop for failure to use turn signal),
Commonwealth v. Busser, 56 A.3d 419, 424 (Pa. Super.
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2012) (probable cause required to stop for failure to yield
to emergency vehicles), and Feczko, 10 A.3d at 1291(probable cause required to stop for failure to maintain
lanes), with [Holmes, 14 A.3d at 96-97] (reasonable
suspicion sufficient to stop to investigate front windshield
obstruction), Commonwealth v. Bailey, 947 A.2d 808,
812–14 (Pa. Super. 2008) (reasonable suspicion sufficient
to stop to investigate faulty exhaust system or muffler);
see also Commonwealth v. Landis, 89 A.3d 694, 703
(Pa. Super. 2014) (noting that where trooper stopped
motorist for failing to drive within a single lane—and not to
investigate possible DUI—he needed probable cause to
stop).
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).
Having studied the record, particularly Trooper Thierwechter’s dash
cam video, we conclude that the record supports the trial court’s findings of
fact. We also agree with the trial court’s conclusions of law. Trooper
Thierwechter suspected that Appellant was driving while intoxicated and thus
needed reasonable suspicion to stop Appellant’s vehicle for further
investigation. See id. Viewed objectively through the eyes of a trained
police officer such as Trooper Thierwechter,4 the totality of the
4
Trooper Thierwechter has been a state trooper since February 2013. N.T.,
11/19/15, at 4. He has undergone extensive training relative to the
detection of impaired drivers. Id. He made between twenty and twenty-five
DUI arrests before Appellant’s arrest, and he comes into contact with
persons under the influence of drugs or alcohol at least once every week.
Id. at 5. Although the trial court did not discuss Trooper Thierwechter’s
background in its findings of fact, we can take this evidence into
consideration because it supports the position of the Commonwealth, the
prevailing party in the suppression proceeding. See Jones, 121 A.3d at 526(“Because the Commonwealth prevailed before the suppression court, we
may consider only the evidence of the Commonwealth and so much of the
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circumstances furnished reasonable suspicion to believe that Appellant was
driving while intoxicated. The trial court perceptively observed that the
minimal evidence of weaving, standing alone, did not provide reasonable
suspicion to stop Appellant’s vehicle. Nevertheless, the totality of the
circumstances—Appellant’s act of driving in the wrong lane for no apparent
reason, the lateness of the hour, and his minimal weaving—provided
sufficient reason for Trooper Thierwechter to stop Appellant’s vehicle to
investigate whether he was intoxicated.
Therefore, we conclude the trial court properly denied Appellant's
motion to suppress evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2017
evidence for the defense as remains uncontradicted when read in the
context of the record as a whole.”).
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