NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 666 EDA 2012

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. MATTHEW EDWARD HERKINS Appellant No. 666 EDA 2012 Appeal from the Judgment of Sentence March 1, 2012 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR BEFORE: LAZARUS, J., OTT, J., and STRASSBURGER, J. * MEMORANDUM BY OTT, J. Filed: April 30, 2013 Matthew Edward Herkins appeals from the judgment of sentence entered against him following his conviction on charges of violating 75 Pa.C.S. 3309(1) (driving in a single lane), 75 Pa.C.S. 3802(a)(2) (DUI general impairment BAC first offense), and 75 Pa.C.S. 3802(a)(1) (DUI general impairment first offense). 1 Herkins claims the suppression court erred in finding the State Police Troopers who arrested him had a reasonable suspicion that he had violated the Motor Vehicle Code. Therefore, he argues, the traffic stop was improper and all evidence * Retired Senior Judge assigned to the Superior Court. 1 Herkins was sentenced to a term of five days to six months incarceration plus fines and costs. Sentence was suspended pending the outcome of this appeal.

2 obtained from that stop should have been suppressed. After a thorough review of the submissions by the parties, the certified record including the video recording of the traffic stop, and relevant law, we affirm, although on different grounds. 2 Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; 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 findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts. Commonwealth v. Snyder, 60 A.3d 165, 169 (Pa. Super. 2013). The suppression court stated the following facts leading to the traffic stop in its Pa.R.A.P. 1925(a) opinion. Trooper Kyle Kutz, assigned to Troop J, Embreeville Barracks of the Pennsylvania State Police, was on duty on May 11, 2011 at approximately 10:15 p.m. Trooper Kutz was driving on Marshallton Thorndale Road in the area of Poorhouse Road in West Bradford Township when he observed a green BMW 7 Series heading eastbound on Marshallton Thorndale Road. Trooper Kutz observed the vehicle cross both the center yellow line and the white fog line two or three times; therefore, he initiated a traffic stop. Upon initiating the stop, Trooper Kutz activated his lights and siren. Upon initiation of the siren, the 2 [A]n appellate court may affirm a valid judgment based on any reason appearing as of record, regardless of whether it is raised by the appellee. Commonwealth v. Fransen, 42 A.3d 1100, 1113 (Pa. Super. 2012)

3 MVR began recording activities and backdates about 30 seconds.[ 3 ] Pa.R.A.P. 1925(a) Opinion at 3. Id. at 6. Additionally, the suppression court found: Both Trooper Kutz and Trooper Zulic [sic] observed [Herkins] cross the double yellow line and well as the fog line two or three times while following him. [Herkins] was weaving back and forth in his lane of travel, at one point nearly causing a head on collision.... Both Trooper Kutz and Trooper Zulic [sic] testified that [Herkins] was stopped based upon the fact that he was swerving back and forth on the roadway, crossed the yellow and white lines two or three times, and generally could not keep his vehicle within the lane, a violation of Section 3309(1). Based on the foregoing evidence, the suppression court determined the Troopers possessed a reasonable suspicion that Herkins was driving in violation of Section See Opinion at 6. In his brief, Herkins has also argued, in part, the Troopers did not have reasonable suspicion to stop him for DUI. See Appellant s Brief at 3. However, Trooper Zulick testified the only reason they stopped Herkins was for violating Section 3309 of the 3 This was not explained on the record. We believe this to mean that the recording device has a buffer that retains what the camera sees for approximately 30 seconds. When the siren is activated, the recording device is activated which then retains the images in the buffer. The effect of this is that the 30 seconds prior to siren activation is retained and recorded as well as all images from then on

4 Motor Vehicle Code. See N.T. Suppression Hearing, 11/7/12 at 34. Therefore, the proper determination is whether the Troopers possessed probable cause to stop Herkins for violating the statute addressing driving in a single lane. While reasonable suspicion is the proper standard for a traffic stop that will involve further investigation, such as for suspected DUI, a traffic violation that does not require subsequent investigation still requires probable cause. The amendment of 6308(b) accomplished the elimination of a unique and higher statutory threshold for stops for Vehicle Code offenses; the amendment indicated the legislature did not wish to create a higher standard than that required under the Constitution. That said, one must remember the reason why the Constitution tolerates the lesser standard articulated in Terry - the detention is allowed to maintain the status quo so the officer may conduct a brief and safe investigation to see if indeed there is criminal activity afoot. Extensive case law supports the conclusion a vehicle stop for DUI may be based on reasonable suspicion, as a post-stop investigation is normally feasible. However, a vehicle stop based solely on offenses not investigatable cannot be justified by a mere reasonable suspicion, because the purposes of a Terry 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. Commonwealth v. Feczko, 10 A.3d 1285, 1290 (Pa. Super. 2012) (en banc) quoting Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008) (emphasis in original). A violation of the single lane statute is not investigatable, therefore, probable cause is required. Here, the suppression court found Herkins had - 4 -

5 crossed both the fog lines and double yellow lines two to three times and generally had a difficult time staying within the lane. The suppression court also determined in one instance Herkins drifted onto the yellow lines on a curve just as another car passed in the opposite direction, posing a risk of collision. These facts are, as a matter of law, sufficient to stop a driver for violating Section See Feczko, supra, in which Feczko was weaving within his lane and also crossed out of his lane of travel on numerous occasions. N.T. Suppression, 4/28/09, at 8. Trooper Miller observed Appellant's vehicle cross the double yellow center line of SR 174 on two separate occasions as well as drift over the white fog line on the opposite side of the traffic lane. Id. While no vehicles were required to take evasive action, Trooper Miller did observe traffic in the on-coming lane while following Appellant's vehicle. Id. at These observations gave rise to a suspected violation of the Motor Vehicle Code provision requiring that vehicles drive within a single lane. Commonwealth v. Feczko, 10 A.3d at Based upon those observations, the en banc panel of our Court determined the State Troopers possessed probable cause to stop Feczko for a violation of Section Our Court took particular notice of the safety hazard presented by the deviations from the lane of travel and the presence of oncoming traffic. Id. at The facts of the instant matter, as determined by the suppression court, are nearly identical to the facts of Feczko. Therefore, the Troopers possessed probable cause to stop Herkins. Herkins has conceded that once stopped, the Troopers had probable cause to arrest him for DUI. See - 5 -

6 Appellant s Brief at 2. Therefore, we need not discuss the facts and circumstances following the stop and preceding the arrest. Because the Troopers possessed sufficient probable cause to stop Herkins for violating Section 3309(1) of the Motor Vehicle Code, we affirm the order denying suppression of the evidence and affirm the judgment of sentence. Judgment of Sentence affirmed