Opinion
J.S07038/16 No. 351 MDA 2015
02-11-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. CHARLES E. GARDNER, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 20, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001541-2013 BEFORE: BOWES, OTT, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Charles E. Gardner, Jr., appeals from the January 20, 2015 judgment of sentence of seventy-two hours to six months of incarceration entered in Cumberland County following his convictions for driving under the influence-general impairment ("DUI"), DUI-high rate of alcohol, DUI-metabolite, and DUI-combined influence. Appellant contends the trial court erred in denying his pre-trial motion to suppress evidence. We affirm.
We summarize the factual and procedural background of this case as follows. On February 1, 2013, at approximately 11:45 p.m., Officer Keith Morris, of the East Pennsboro Township Police Department, was traveling in an unmarked police car behind Appellant's vehicle. N.T. Suppression Hr'g, 2/18/14, at 3-7. As Officer Morris followed Appellant, he observed Appellant's vehicle, "drift to the left over the yellow line" and quickly hit his brakes. Id. at 6. Officer Morris then twice witnessed Appellant's car "drift[] well to the right side of the road." Id. Appellant continued to a red light and turned right; at which time, Officer Morris observed Appellant's vehicle come into contact with the line. Id. at 6-7. Officer Morris next observed Appellant's vehicle "actually cross[] over the yellow line" while an oncoming vehicle was traveling toward Appellant. Id. at 7. Based on these observations, Officer Morris initiated a traffic stop. Id. Officer Morris conducted field sobriety tests and determined Appellant was incapable of safely operating his vehicle. N.T. Trial, 10/15/14, at 16-19.
Prior to trial, Appellant filed a motion to suppress evidence based on a lack of reasonable suspicion or probable cause to effectuate a traffic stop. The trial court held a suppression hearing on February 18, 2014. On March 20, 2014, the trial court issued an order and accompanying opinion denying Appellant's motion. The trial court included in its opinion the following findings of fact and conclusions of law.
1. Officer Keith Morris is employed by the East Pennsboro Township Police Department and has
been so employed for twelve years. He has had training in detecting drivers who may be under the influence of alcohol or drugs, including yearly updates with field sobriety and advanced roadside impairment detention class.
2. Officer Morris was working on the evening of February 1, 2013, in an unmarked police vehicle equipped with a video camera.
3. Officer Morris pulled [Appellant] over on February 1, 2013, shortly before midnight.
4. Officer Morris first saw [Appellant's] vehicle while he was traveling northbound on North Enola Drive.
5. As he followed [Appellant], Officer Morris observed the vehicle cross over or touch the yellow line with its tires in the area of Cumberland Road and North Enola Drive.
6. Officer Morris then observed the vehicle negotiate an s-curve in the roadway. During the first part of the turn, he saw the vehicle drift to the left and cross over the double yellow line a second time.
7. As the vehicle proceeded through the s-curve, Officer Morris observed the vehicle execute a quick unexplainable braking action. Officer Morris stated this as unusual because the vehicle was not driving at an excessive rate of speed and with the nature of the s-curve being uphill, a driver would need to accelerate through the turn and not use the brakes unless he was starting to drift to the other side of the road.
8. As the vehicle travelled through the last part of the s-curve, which was a left-hand curve, Officer Morris saw the vehicle drift well to the right side of the road.
9. Officer Morris continued to follow the vehicle northbound on North Enola Drive and saw the vehicle
drift to the very far right side of the road after the vehicle crossed through the intersection at East Columbia Road. Officer Morris stated that the vehicle drifted so far to the right it was in an area on the roadway where cars are allowed to park. If a car had been parked there, [Appellant's] vehicle would have struck it.
10. The video recording from Officer Morris's vehicle clearly shows [Appellant's] vehicle drift to the far right after the intersection at North Enola Drive and East Columbia Road.
11. [Appellant] then made a right turn onto Shady Lane; and as he does so, Officer Morris observed the driver's side tires come into contact with the yellow line a third time.
12. There is no separate right hand turn lane to turn onto Shady Lane. Officer Morris noted it was highly unusual that [Appellant's] vehicle would be so far to the right prior to turning onto Shady Lane.
13. There is no berm line or shoulder area on North Enola Drive in the vicinity of Shady Lane. There is a standard curb on North Enola Drive, and [Appellant's] vehicle was so far to the right that it came close to striking the curb.
14. As the vehicle continued eastbound on Shady Lane, Officer Morris witnessed the vehicle cross over the double yellow line a fourth time into the lane of opposing traffic by a half to full tire width. As [Appellant's] vehicle crossed over this double yellow line separating opposing lanes of traffic, there was an oncoming vehicle travelling westbound toward [Appellant's] vehicle.
15. The video clearly shows [Appellant's] vehicle cross the double yellow line on Shady Lane while oncoming vehicles approached.
16. Officer Morris had probable cause to make a traffic stop for a violation of 75 Pa.C.S.A. § 3309 - Driving on Roadways Laned for Traffic.Trial Ct. Op., 3/20/14, at 1-4.
17. After making all the above observations, given the totality of the circumstances, Officer Morris had reasonable suspicion to believe that something was medically wrong with the driver of the vehicle or that the driver was under the influence of alcohol which impaired his ability to safely drive the motor vehicle and that additional investigation was warranted.
Appellant proceeded to a non-jury trial on October 15, 2014. At the conclusion of the trial, Appellant was convicted of the above crimes. The trial court sentenced him on January 20, 2015. Appellant filed a motion for reconsideration of his sentence on January 27, 2015, and the trial court denied said motion on February 3, 2015. Appellant filed a timely notice of appeal on February 25, 2015. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied, and the trial court filed a responsive Rule 1925(a) opinion.
We note that both Appellant and the Commonwealth suggest in their respective briefs that Appellant's appeal lies from the February 3, 2015 order denying Appellant's post-sentence motion. However, Appellant's notice of appeal correctly indicates the appeal lies from the January 20, 2015 judgment of sentence, made final by the denial of his post-sentence motion. See Commonwealth v. Kuykendall , 2 A.3d 559, 560 n.1 (Pa. Super. 2010).
On appeal, Appellant raises the following issue for our review.
Did the trial court err when it denied Appellant's omnibus pretrial motion to suppress evidence?Appellant's Brief at 5.
Appellant argues there was no probable cause or reasonable suspicion to justify the vehicle stop because "[t]he video from Officer Morris' patrol vehicle did not clearly show Appellant crossing the yellow line on the left (2 to 3 times)." Appellant's Brief at 10. He continues that he did not strike the curb on the right side of the road, and he made a legal right turn without placing pedestrians in any danger. Id. Therefore, "[t]he evidence presented did not establish that the officer had probable cause [or reasonable suspicion] to stop Appellant's vehicle." Id. For the following reasons, we conclude Appellant is due no relief.
We first must ascertain if Appellant has properly preserved his argument. We note, with disapproval, that with the exception of a short statement outlining this Court's standard of review, Appellant's entire argument is devoid of citations to or discussion of legal authority in support of his position. See Appellant's Brief at 9-10. Instead, Appellant merely provides a brief summary of Officer Morris' testimony and challenges his credibility. See id. Absent from Appellant's brief is any meaningful discussion of either the probable cause or reasonable suspicion standard. See id.
We remind Appellant, "it [is] for the trier of fact to determine the weight of the evidence and the credibility of the witnesses. . . . This Court may not weigh the evidence or substitute its judgment [f]or that of the factfinder." Commonwealth v. Devries , 112 A.3d 663, 667 (Pa. Super. 2015) (citations omitted).
In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities. This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. To do so places the Court in conflicting roles of advocate and neutral arbiter. When an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is waived.In re S.T.S., J.R., 76 A.3d 24, 42 (Pa. Super. 2013) (citations omitted and emphasis added), appeal denied, 91 A.3d 163 (Pa. Super. 2014).
As noted, Appellant wholly failed to include any citation to legal authority or pertinent discussion in support of his argument, with the exception of one citation to the standard of review. Appellant's Brief at 9-10. Therefore, we conclude Appellant has waived review of his sole challenge on appeal. See In re S.T.S., J.R., 76 A.3d at 42.
Assuming, however, Appellant had not waived his challenge, we are mindful that the following principles apply over challenges to suppression orders.
When reviewing the propriety of a suppression order, an appellate court is required to determine whether the record supports the suppression court's factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. . . . Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. . . . [T]he conclusions of law
of the suppression court are subject to plenary review.Commonwealth v. Salter , 121 A.3d 987, 992 (Pa. Super. 2015) (citation omitted).
Specifically, in the context of traffic stops, the level of suspicion requires is codified as follows.
Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicions 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 such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.75 Pa.C.S. § 6308(b).
However, this Court has expounded that in some instances, probable cause is the correct standard.
[W]hen considering whether reasonable suspicion or probable cause is required constitutionally to make a vehicle stop, the nature of the violation has to be considered. If it is not necessary to stop the vehicle to establish that a violation of the Vehicle Code has occurred, an officer must possess probable cause to stop the vehicle. Where a violation is suspected, but a stop is necessary to further investigate whether a violation has occurred, an officer need only possess reasonable suspicion to make the stop. Illustrative of these two standards are stops for . . . DUI. . . . [I]f 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.Commonwealth v. Ibrahim , ___ A.3d ___, ___ 2015 WL 6777602, at *4 (Pa. Super. 2015) (citation omitted and emphases added).
Instantly, had Appellant not waived review of this issue, we would conclude that the trial court's analysis in its Rule 1925(a) opinion addressing Appellant's issue is in accord with our views, and we would adopt its reasoning. See Trial Ct. Op. 5/4/15, at 4-6. Specifically, the trial court concluded that Officer Morris (1) had probable cause to initiate a traffic stop based Appellant's violation of 75 Pa.C.S. § 3309(1), and (2) possessed sufficient reasonable suspicion that Appellant was driving under the influence. See id. Thus, the stop was legal, and we discern no basis to reverse. See Ibrahim , ___ A.3d at ___, 2015 WL6777602 at *4; Salter , 121 A.3d at 992.
Based on the foregoing discussion, we conclude Appellant is not entitled to relief on his claim, and we discern no error in the trial court's ruling. Accordingly, we affirm his judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/11/2016
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