Com. v. Myers, R. (memorandum)

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J-S06030-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROBERT LEE MYERS Appellant No. 518 MDA 2013 Appeal from the Judgment of Sentence February 19, 2013 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000178-2012 BEFORE: LAZARUS, J., OTT, J., and JENKINS, J. MEMORANDUM BY OTT, J.: FILED APRIL 29, 2014 Robert Lee Myers appeals from the judgment of sentence imposed on him in the Court of Common Pleas of Cumberland County following his conviction in a non-jury trial on charges of driving under the influence (DUI): general impairment, third or subsequent offense; DUI: highest rate, third or subsequent offense; and driving while operating privileges suspended or revoked.1 incarceration. In this timely appeal, Myers claims the trial court erred in failing to suppress evidence obtained after the traffic stop where the police officer did not possess the requisite reasonable suspicion to stop his vehicle without ____________________________________________ 1 75 Pa.C.S. §§ 3802(a)(1), 3802(c), and 1543(b)(1), respectively. J-S06030-14 having witnessed a violation of the motor vehicle code. After a thorough review of the submissions by the parties, the certified record, and relevant law, we affirm. Our scope and standard of review from the denial of a suppression motion are well settled: An appellate court's standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. [Because] the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution 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 record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Smith, 85 A.3d 530, 534 (Pa. Super. 2014) (citation omitted). With this standard in mind, we repeat the factual history as set forth by the trial court. On October 23, 2012, at approximately 1:00 A.M., Sergeant Todd Lindsay, who has been an officer with Silver Spring Township since July of 2000 with over 100 DUI arrests, was on patrol in an unmarked police cruiser. Sergeant Lindsay was leaving Mechanicsburg heading towards Carlisle on Trindle Road. flashed his high beams to get an oncoming vehicle to dim its head lights. After Sergeant Lindsay flashed his high beams, he side of the road. Sergeant Lindsay -2- J-S06030-14 Carlisle. Shortly thereafter, Sergeant Lindsay executed a U-turn and proceeded back towards Mechanicsburg. way back which was proceeding at a speed of twenty to twenty-five miles per hour. Sergeant Lindsay found this odd given the posted speed limit of forty-five miles per hour and the lack of adverse conditions. Sergeant Lindsay again executed a U-turn to in executing a U-turn to travel in the opposite direction. Sergeant -turn. Sergeant Lindsay pulled off the road on to the eastbound begin to travel toward him and then pull off the road onto the westbound shoulder. ound shoulder, Sergeant Lindsay pulled his unmarked patrol cruiser alongside activated his rear emergency lights to identify himself as a police officer. He rolled down his window and yelled across the road, driving, responded by rolling his window down, to which slow, thick, and slurred. [Myers] said he was going back to Carlisle and pulled away. Given the slow, thick, and slurred Lindsay decided to follow everything was in order. [Myers] vehicle to make sure five to forty miles per hour below the speed limit. He saw that response to oncoming traffic even though that traffic stayed in their own lane. [Myers] had difficulty traveling in a straight line. the shoulder to the center of the road. There was nothing on the roadway that would necessitate such evasive action. [Myers] continued to have trouble maintaining the car in its lane of travel. Based on all of the above, Sergeant Lindsay suspected that [Myers] was driving under the influence of alcohol. He -3- J-S06030-14 activated his emergency lights and conducted a traffic stop of [Myers] explained that it was suspended due to a previous DUI. [Myers] failed field sobriety tests administered to him. A subsequent blood alcohol test showed an alcohol content of 0.256 percent. Trial Court Opinion, 6/17/2013, at 1-5 (citations omitted). There are two standards, depending upon circumstances, which are applied to traffic stops in the Commonwealth of Pennsylvania. Which standard applies depends upon whether the basis of the traffic stop was an 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.] Chase, 960 A.2d [108] at 116 [(Pa. Super. 2008)]. In effect, the language of Section 6308(b) is conceptually equivalent with the underlying purpose of a Terry [v. Ohio, 88 S.Ct. 1868 (1968)] stop. Id. (quoting 75 Pa.C.S. § 6308(b)). Mere reasonable suspicion will not justify a vehicle stop when the driver's detention cannot serve an investigatory purpose relevant to the suspected viol [sic] upon the officer to articulate specific facts possessed by him, at 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 the Code. Commonwealth v.] Gleason, 785 A.2d [983] at 989 [(Pa. Super. 2001)] (citation omitted). See also Chase, 960 A.2d at 116 (reaffirming probable cause standard for non-investigative detentions of suspected Vehicle Code violations). -4- J-S06030-14 Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc). Here, Sergeant Lindsay admitted that he did not witness any specific motor vehicle code infraction before he stopped Myers. Suppression, 7/30/2012, at 16. See N.T. Rather, gi suspected he was driving under the influence. Driving under the influence is an investigable offense, see generally Commonwealth v. Sands, 887 A.2d 261 (Pa. Super. 2005), and therefore the Commonwealth is required to prove the police officer possessed a reasonable suspicion of DUI to justify a traffic stop. consistently under the posted speed limit for no discernable reason, veer away from oncoming traffic that posed no danger, swerve repeatedly within his lane of travel for no discernable reason, and make multiple U-turns. and thick. After the first conversation between Myers and Sergeant Lindsay ended and Myers pulled away, he continued to drive in the above mentioned peculiar manner. The suppression court determined these articulated reasons gave rise to the reasonable suspicion that Myers was operating his vehicle while intoxicated. Th stop of Myers, allowing him to investigate further. We agree with the trial court that the facts presented instantly compare favorably to the facts developed in Commonwealth v. Sands, -5- J-S06030-14 supra. In Sands, a police officer, in the early morning hours, saw a car drift multiple times across the fog line without any circumstances such as experience, who had made between 40 and 50 DUI arrests, and the articulable observations, the officer possessed a reasonable suspicion that Sands was driving under the influence. determinations are supported by the record and the legal conclusions drawn was properly denied by the trial court. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/29/2014 -6-

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