Commonwealth v. Bush

J-A11033-17

2017 PA Super 232

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JESSE RAY BUSH :

:

Appellant : No. 1765 MDA 2016

Appeal from the Judgment of Sentence September 29, 2016

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0007979-2015

BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED JULY 19, 2017

This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of York County following Appellant Jesse Ray Bush’s

conviction in a non-jury trial on the charges of possession of drug

paraphernalia, driving under the influence of alcohol or a controlled

substance (“DUI”), driving under suspension as a habitual offender, and

driving under suspension-DUI related.1 Appellant’s sole claim is that the

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

35 P.S. 780-113(a)(32); 75 Pa.C.S.A. §§ 3802(a)(1), 6503.1, and

1543(b)(1.1)(i), respectively. Appellant was also charged with DUI under 75

Pa.C.S.A. §§ 3802(d)(1)(iii) and (d)(3); however, the Commonwealth nol

prossed the charges. Further, Appellant was charged with the summary

offenses of driving on roadways laned for traffic, 75 Pa.C.S.A. § 3309(1),

and use of multiple-beam road lighting equipment, 75 Pa.C.S.A. § 4306(a);

however, the trial court indicated that, in light of its findings of guilt on

(Footnote Continued Next Page)

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police officer did not have probable cause or reasonable suspicion to stop his

vehicle, and therefore, the lower court erred in denying his pre-trial motion

to suppress the physical evidence seized by the police. After a careful

review, we affirm.

The relevant facts and procedural history are as follows: Appellant was

arrested, and on April 11, 2016, he filed a counseled pre-trial motion

seeking to suppress the physical evidence seized by the police following the

stop of his vehicle. Specifically, Appellant averred the stop of his vehicle

was illegal since the police officer had neither probable cause nor reasonable

suspicion to initiate the stop.

On June 28, 2016, the matter proceeded to a suppression hearing at

which the sole witness was Pennsylvania State Police Trooper Raymond W.

Rutter, who testified that he has been a trooper for approximately three

years. N.T., 6/28/16, at 4. He indicated that, on November 1, 2015, at

approximately 3:15 a.m., he was on duty and traveling in the left-hand lane

on I-83 southbound near the Maryland state line when he observed the

following:

[A] SUV, a dark colored SUV, which was traveling northbound,

which had passed me, which had its high beams on. While that

[SUV] had passed me there was another vehicle—that [SUV]

was traveling in the right lane, there was a smaller sedan which

was traveling in the left-hand lane, passing that [SUV] that was

_______________________

(Footnote Continued)

various charges, it would “not make a finding of guilt” on the summary

offenses. N.T., 9/29/16, at 3.

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in the right which had its high beams on, and then I spun around

just north of the Maryland line, the divider, and approached that

[SUV] which I saw [with] its high beams on from the rear.

Id. at 6-7.

When asked by the prosecutor how he could “tell that the high beams

were on[,]” Trooper Rutter answered that the lights “were bright to me

looking at them.” Id. at 7. Trooper Rutter indicated that his experience as

a trooper assisted him in making his determination. Id.

Moreover, when the prosecutor asked Trooper Rutter how close he was

to the SUV when he first noticed the high beams were activated, Trooper

Rutter testified that he was within 300 feet. Id. at 8. He further indicated

that he “actually pas[sed] [the SUV] going south and they were still

activated. So whatever the distance from two lanes over would be on the

interstate, plus the center.” Id.

Trooper Rutter clarified that, when he turned his police vehicle around

at the highway divider and proceeded northbound, he did so with the intent

of stopping Appellant’s SUV “for the violation of the high beams.” Id. He

indicated that, once he caught up to the SUV, he did not immediately stop it,

but he continued to follow it as he knew that the welcome center, which

would be a safe place to stop the SUV, was “just north of [his] location.” Id.

As he followed the SUV to the welcome center, Trooper Rutter noticed

the vehicle “cross over the fog lines two times[.]” Id. at 8-9. Trooper

Rutter testified that, at this point, in addition to the high beams traffic

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violation, Trooper Rutter suspected that Appellant might be DUI. Id. at 10-

11. He clarified, however, that even if Appellant’s SUV had not crossed the

fog lines twice, he still intended to stop the vehicle “for the high beams

violation." Id. at 11. Trooper Rutter indicated that he stopped Appellant’s

SUV, and charged Appellant with numerous crimes, including DUI-related

charges and the high beams violation. Id. at 12.

On cross-examination, Trooper Rutter clarified that, in the area where

the incident occurred, between the northbound and southbound lanes on I-

83, there was a guardrail at the height of the concrete barriers. Id. at 13-

14, 16. He confirmed that Appellant was driving in the northbound right-

hand lane, and he was traveling in the southbound left-hand lane; the

divider between the northbound and southbound lanes was approximately

sixty feet in width. Id. at 16. Trooper Rutter testified that the highways

were straight without curves in this area, so the northbound and southbound

vehicles passed each other. Id.

Trooper Rutter reiterated that when he first noticed Appellant’s SUV

traveling northbound it “appeared to [him] that it had the high beams on.”

Id. at 14. He noted that he has “made numerous stops on high beam

violations, and [Appellant’s SUV] appeared to be [sic] high beams on to

[him.]” Id. at 14-15. Further, Trooper Rutter noted that, based on his

training and experience, Appellant’s SUV had its high beams on. Id. at 15.

He testified that Appellant’s SUV’s lights “affected [his] eyes, they were

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bright into [his] eyes, but it didn’t make [him] swerve or crash or anything

like that.” Id. He noted that the sedan, which was passing Appellant’s SUV,

did not have its high beams activated. Id. at 16. Trooper Rutter testified

that he is “pretty good” about “picking out” which vehicles have their high

beams activated. Id. at 20. He reiterated that from his “training and

experience it appeared to be high beams and that’s why [he] initiated the

stop [of Appellant’s SUV].” Id. at 21.

At the conclusion of the hearing, the suppression court denied

Appellant’s motion to suppress, concluding that Trooper Rutter observed

Appellant’s SUV with its high beams improperly activated, and thus, he had

probable cause to stop Appellant’s SUV. Id. at 41-42. Subsequently,

following a non-jury trial, the trial court convicted Appellant of the offenses

indicated supra and sentenced him to an aggregate of nine and one-half

years to twenty years in prison. This timely appeal followed, and all

Pa.R.A.P. 1925 requirements have been met.

On appeal, Appellant contends that the stop of his SUV was illegal

since Trooper Rutter did not have the requisite probable cause or reasonable

suspicion to initiate a stop. Accordingly, he argues the trial court erred in

denying his pre-trial motion to suppress the physical evidence seized as a

result of the stop of his SUV.

The issue of what quantum of cause a police officer must possess in

order to conduct a vehicle stop based on a possible violation of the Motor

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Vehicle Code is a question of law, over which our scope of review is plenary

and our standard of review is de novo. Commonwealth v. Chase, 599 Pa.

80, 960 A.2d 108 (2008). “[A]ppellate courts are limited to reviewing only

the evidence presented at the suppression hearing when examining a ruling

on a pre-trial motion to suppress.” Commonwealth v. Stilo, 138 A.3d 33,

35-36 (Pa.Super. 2016) (citation omitted). Our Supreme Court has

declared:

[The] standard of review in addressing a challenge to a

trial court’s denial of a suppression motion is whether the factual

findings are supported by the record and whether the legal

conclusions drawn from those facts are correct. When reviewing

such a ruling by the suppression court, we must consider only

the evidence of the prosecution and so much of the evidence of

the defense as remains uncontradicted when read in the context

of the record....Where the record supports the findings of the

suppression court, we are bound by those facts and may reverse

only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134 (2007)

(internal citations omitted). “It is within the suppression court’s sole

province as factfinder to pass on the credibility of witnesses and the weight

to be given their testimony.” Commonwealth v. Gallagher, 896 A.2d 583,

585 (Pa.Super. 2006) (quotation marks and quotation omitted).

Our analysis of the quantum of cause required for a traffic stop begins

with 75 Pa.C.S.A.§ 6308(b), which provides:

(b) Authority of police officer.—Whenever a police officer is

engaged in a systematic program of checking vehicles or drivers

or 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,

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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.A. § 6308(b) (bold in original). “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. Feczko, 10 A.3d 1285, 1291

(Pa.Super. 2010) (en banc) (citation omitted). For a stop based on the

observed violation of the vehicle code or otherwise non-investigable offense,

an officer must have probable cause to make a constitutional vehicle stop.

Feczko, 10 A.3d at 1291 (“Mere reasonable suspicion will not justify a

vehicle stop when the driver’s detention cannot serve an investigatory

purpose relevant to the suspected violation.”).

Here, the trial court found that Trooper Rutter credibly testified that he

stopped Appellant’s vehicle on the basis that Appellant had his high beams

activated in violation of 75 Pa.C.S.A. § 4306, use of multiple-beam road

lighting equipment. Since an investigation following the traffic stop would

have provided Trooper Rutter with no additional information as to whether

Appellant violated Section 4306, probable cause was necessary to initiate

the stop on this basis. See Commonwealth v. Slattery, 139 A.3d 221,

222-23 (Pa.Super. 2016) (holding that where the “vehicular stop is to

determine whether there has been compliance with the Commonwealth’s

vehicle code, it is incumbent upon the officer to articulate....probable cause

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to believe that the vehicle or the driver was in violation of some provision of

the code”) (citation omitted)); Feczko, supra.

Our Supreme Court has defined probable cause as follows:

Probable cause is made out when the facts and circumstances

which are within the knowledge of the officer at the time of the

[stop], and of which he has reasonably trustworthy information,

are sufficient to warrant a man of reasonable caution in the

belief that the suspect has committed or is committing a crime.

The question we ask is not whether the officer’s belief was

correct or more likely true than false. Rather, we require only a

probability, and not a prima facie showing, of criminal activity.

In determining whether probable cause exists, we apply a

totality of the circumstances test.

Commonwealth v. Martin, 627 Pa. 623, 101 A.3d 706, 721 (2014)

(citation omitted) (emphasis in original). Pennsylvania law makes clear,

however, that a police officer has probable cause to stop a motor vehicle if

the officer observes a traffic code violation, even if it is a minor offense.

Chase, supra.

Here, Trooper Rutter stopped Appellant’s SUV for a violation of Section

4306, which provides, in relevant part, the following:

§ 4306. Use of multiple-beam road lighting equipment

(a) Approaching an oncoming vehicle.-Whenever the driver

of a vehicle approaches an oncoming vehicle within 500 feet, the

driver shall use the low beam of light.

75 Pa.C.S.A. § 4306(a) (bold in original).2

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2

Section 4306 provides for exceptions related to emergency vehicles and

drivers flashing their high beams for purposes of warning oncoming vehicles

of danger; however, neither of these exceptions are implicated in the case

sub judice. See 75 Pa.C.S.A. § 4306(c).

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In construing Section 4306(a) to determine its meaning, we are

guided by the following legal precepts as set forth by our Supreme Court:

The purpose of statutory interpretation is to ascertain the

General Assembly’s intent and give it effect. 1 Pa.C.S.[A.] §

1921(a). In discerning that intent, the court first resorts to the

language of the statute itself. If the language of the statute

clearly and unambiguously sets forth the legislative intent, it is

the duty of the court to apply that intent to the case at hand and

not look beyond the statutory language to ascertain its meaning.

See 1 Pa.C.S.[A.] § 1921(b) (“When the words of a statute are

clear and free from all ambiguity, the letter of it is not to be

disregarded under the pretext of pursuing its spirit.”).

“Relatedly, it is well established that resort to the rules of

statutory construction is to be made only when there is an

ambiguity in the provision.” Oliver v. City of Pittsburgh, 608

Pa. 386, 11 A.3d 960, 965 (2011) (citations omitted).

Mohamed v. Com., Dep’t of Transp., Bureau of Motor Vehicles, 615 Pa.

6, 40 A.3d 1186, 1193 (2012). See Commonwealth v. Irwin, 769 A.2d

517, 521 (Pa.Super. 2001) (holding when language of a statute is clear and

unambiguous, it must be given effect in accordance with its plain and

common meaning).

Pursuant to the plain and clear language of Section 4306(a), a driver

commits a traffic code violation whenever the driver approaches an

oncoming vehicle within 500 feet and does not use the vehicle’s low beam

lights. In Irwin, supra, we noted that the term “approaches,” as used in

Section 4306(a), is defined as “to come nearer in space.” Irwin, 769 A.2d

at 522. Moreover, the dictionary definition of “oncoming” is “coming nearer

in time or space.” Webster’s Collegiate Dictionary 811 (10th ed. 1997).

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In the case sub judice, the trial court found that Trooper Rutter

credibly testified that, as he was driving in the southbound left-hand lane of

I-83, Appellant, who was driving his SUV in the northbound right-hand lane

of I-83, drove by Trooper Rutter with his SUV’s high beams activated. N.T.,

4/12/16, at 41. The trooper testified that Appellant’s SUV was within 300

feet of his cruiser. Id. at 8. He further testified that he had a clear view of

Appellant’s SUV’s lights; Appellant’s SUV’s lights were noticeably brighter

than the lights of the sedan, which passed Appellant’s SUV; and Appellant’s

SUV’s lights affected the trooper’s eyes. Id. at 15-16. Trooper Rutter

testified that he has made numerous stops based on high beam violations,

and based on his training and experience, he concluded Appellant did not

properly dim his lights when he passed by the trooper’s cruiser. Id. at 14,

21.

Based on the aforementioned, we conclude the trial court properly

determined that Trooper Rutter had probable cause to stop Appellant’s SUV

for a violation of Section 4306(a). Simply put, Appellant’s SUV approached

(came closer to) Trooper Rutter’s police cruiser as the cruiser was oncoming

(coming near to Appellant’s vehicle) within 500 feet, and Appellant did not

use the low beam of light.3

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3

Appellant specifically avers Trooper Rutter did not offer sufficient credible

testimony to establish probable cause to believe that Appellant, in fact, had

his SUV’s high beams activated when he drove by the trooper’s cruiser. See

(Footnote Continued Next Page)

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We find unavailing Appellant’s specific argument that he was not

required to dim his lights as his SUV did not approach an oncoming vehicle

as required for a violation of Section 4306(a). In this regard, Appellant

reasons that, since a guardrail and concrete barrier divided I-83’s

southbound lane in which Trooper Rutter was driving from the northbound

lane in which Appellant was driving, the SUV was not “approaching” and the

trooper’s cruiser was not “oncoming” for purposes of the statute.

As fully discussed supra, giving the statute’s express terms their plain

meaning, we disagree with Appellant’s argument. While the guardrail and

concrete barrier should be taken into consideration in determining whether

Appellant’s SUV approached within 500 feet of Trooper Rutter’s oncoming

police cruiser, the existence of such does not alter or negate the plain

language of the statue. Moreover, while the Legislature listed exceptions to

the use of high beams in Section 4306(c), it did not include a blanket

_______________________

(Footnote Continued)

Appellant’s Brief at 15-17. In this regard, he notes that vehicle lights have

varying degrees of brightness, and Trooper Rutter allegedly offered

contradictory reasons as to why he stopped Appellant’s vehicle. See id. As

indicated supra, the suppression court found Trooper Rutter’s testimony

regarding Appellant’s use of high beams to be credible. We are bound by

the suppression court’s credibility determination and factual findings, which

are supported by the record. See Eichinger, supra; Gallagher, supra.

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exception related to the use of high beams on a divided highway 4 as was

present in this case.

Further, we find unavailing Appellant’s reliance upon Commonwealth

v. Beachey, 556 Pa. 345, 728 A.2d 912 (199), in support of his argument

that he did not violate Section 4306(a). In Beachey, the appellant, who

was driving during the daylight hours of an overcast summer day, flashed

his high beams ten or more times to warn oncoming motorists of the

presence of a police radar unit. Id. at 347, 728 A.2d at 912. An officer

stopped the appellant’s vehicle and cited him with violating Section 4306(a).

This Court affirmed the appellant’s judgment of sentence.

In reversing and finding no violation of the high beams statute

occurred, our Supreme Court reasoned that “[a]lthough [Section 4306(a)]

does not specify its scope of application, reason requires that it be read in

connection with statutory language that sets forth the circumstances when

motorist are required to use their headlights.” Id. at 347, 728 A.2d at 913

(citing 1 Pa.C.S.[A.] § 1932 (statutes in pari materia are to be construed

together)). Accordingly, our Supreme Court examined 75 Pa.C.S.A. § 4302,

which requires motorists to use lighted head lamps between sunset and

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4

The Motor Vehicle Code defines “divided highway” as “[a] highway divided

into two or more roadways and so constructed as to impede vehicular traffic

between the roadways by providing an intervening space, physical barrier or

clearly indicated dividing section.” 75 Pa.C.S.A. § 102.

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sunrise, as well as when there is insufficient light due to “unfavorable

atmospheric conditions[.]”5 Based thereon, our Supreme Court held:

[S]ection 4302 sets forth the times when headlights must

be used, and [S]ection 4306(a) limits the use of high beams

during those times. If the two provisions were not read

together, application of [S]ection 4306(a) would not be limited

to the times specified in [S]ection 4302 and an absurd result

would follow. Specifically, [S]ection 4306(a)’s requirement that

motorists use their low beams whenever approaching another

vehicle within 500 feet would be applicable during the daytime.

Hence, a motorist would be in violation if, during daylight hours,

he failed to turn on his low beam headlights every time a vehicle

approached within 500 feet. In interpreting statutes, it is

axiomatic that the legislature did not intend an absurd or

unreasonable result. See 1 Pa.C.S.[A.] § 1922(a) (presumptions

in ascertaining legislative intent).

Beachey, 556 Pa. at 348, 728 A.2d at 913.

In the case sub judice, Appellant does not dispute that his high beams

violation occurred during the nighttime hours between sunset and sunrise.

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5

Section 4302 relevantly provides:

§ 4302. Periods for requiring lighted lamps

(a) General rule.-The operator of a vehicle upon a highway

shall display the lighted head lamps and other lamps and

illuminating devices required under this chapter for different

classes of vehicles, subject to exceptions with respect to parked

vehicles, at the following times:

(1) Between sunset and sunrise.

(2) Any time when, due to insufficient light or unfavorable

atmospheric conditions, including rain, snow, sleet, hail, fog,

smoke or smog, persons and vehicles on the highway are not

clearly discernible to the operator for a distance of 1,000 feet

ahead.

75 Pa.C.S.A. § 4302(a) (bold in original).

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Accordingly, Appellant was required to use his headlights pursuant to 4302,

and we conclude Beachey is distinguishable.

This does not end our inquiry, however, as Appellant suggests that

Beachey’s holding that Section 4306(a) must be read together with other

statutes so as to avoid an absurd result requires the courts to construe

Section 4306(a) in conjunction with 75 Pa.C.S.A. § 3345, pertaining to a

driver’s duty in meeting or overtaking a school bus.

In this regard, Appellant notes that Section 3345(a) requires “the

driver of a vehicle meeting or overtaking any school bus stopped on a

highway...[to] stop at least ten feet before reaching the school bus when the

red signal lights...are flashing and the side stop signal arms are activated[.]”

75 Pa.C.S.A. § 3345(a). Further, he notes the school bus statute provides

an exception from the stopping requirement, indicating “[t]he driver of a

vehicle upon a highway...with separate roadways need not stop upon

meeting or passing a school bus with actuated red signal lights which is on a

different roadway.” 75 Pa.C.S.A. § 3345(g).

Appellant reasons that Section 4306(a) must be read in connection

with Section 3345(g) so as to avoid an absurd result in the case sub judice.

In essence, he argues that if drivers are not required to stop for a school bus

on a highway with separate roadways then it would be absurd to require

drivers to use their low beams when approaching an oncoming car on a

divided highway. We disagree.

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Statues in para materia are those relating to the same matter. In re

Trust Under Deed of Kulig, 131 A.3d 494, 497 (Pa.Super. 2015); Black’s

Law Dictionary 807 (10th ed. 2004). While we agree with Appellant that, if

possible, statutes in para materia should be construed together, we disagree

with Appellant that Sections 4306(a) and 3345(g) are in para materia. The

statutes do not relate to the same matter and do not have a common

purpose. Whereas Section 4306 relates to drivers’ use of high beam

headlights, Section 3345 relates to drivers approaching school buses that

are transporting students. The statutes are fundamentally different and,

thus, Beachey’s recognition of the in pari materia principle does not require

that the highway with separate roadways exception contained in the school

bus statute be applied to the high beam statute as well.

Finally, we find unavailing Appellant’s argument that the legislative

intent of Section 4306(a), as recognized in Beachey, does not support the

finding of a violation of Section 4306(a) in the case sub judice. In Beachey

our Supreme Court opined that the language of Section 4306(a)

unambiguously and clearly sets forth the legislative intent of the statute, and

further, that such intent did not support a violation of the statute when

drivers use their high beams during normal, daytime driving. Specifically, in

Beachy, our Supreme Court held as follows:

The plain legislative intent of [S]ection 4306(a) was to

prevent motorists from facing excessive glare, so as to reduce

the obvious safety hazard that exists when a driver suffers

momentary blindness upon being subjected even very briefly to

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the intense brightness of high beam lamps. However, it is

inconceivable that the [L]egislature was concerned about the

midday use of high beams during periods when normal

atmospheric and lighting conditions make it impossible for

drivers to be blinded by headlight glare. We conclude, therefore,

that [S]ection 4306(a) was never intended to apply to the

midday use of one’s headlights. [The] [a]ppellant’s conviction

for the daytime use of his high beams cannot, therefore, be

sustained.

Beachey, 556 Pa. at 348, 728 A.2d at 913.

Here, unlike in Beachey, the safety hazard that Section 4306(a)’s

plain language seeks to prevent was present. The trial court found that

Trooper Rutter credibly testified that the guardrail and concrete barrier did

not prevent Appellant’s SUV’s high beams from shining into his eyes. In

fact, Trooper Rutter specifically testified that Appellant’s SUV’s lights

“affected [his] eyes, they were bright into [his] eyes[.]” N.T., 6/28/ 16, at

15. Thus, the excessive glare which Section 4306 seeks to prevent so as to

reduce the hazard that exists when a driver is momentarily blinded by the

brief, intense brightness of high beam lamps existed in this case, despite the

existence of the guardrail and concrete barrier between the northbound and

southbound lanes of I-83. Accordingly, we find no merit to Appellant’s final

claim.

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For all of the aforementioned reasons, we conclude that the facts of

this case6 presented probable cause of violation of Section 4306(a) for

purposes of the traffic stop of Appellant’s SUV. Further, Trooper Rutter

offered specific and articulable facts that provided probable cause that

Appellant violated the section. Accordingly, as the traffic stop was not

illegal, the trial court did not err in denying Appellant’s pre-trial suppression

motion. Accordingly, we affirm Appellant’s judgment of sentence.

Affirmed.

Judge Moulton joins the Opinion.

Judge Shogan files a Concurring Opinion to which P.J.E Stevens joins.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/19/2017

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6

We recognize that “divided highways” in Pennsylvania exist with numerous

variations, including the dividing of roadways by intervening space with trees

and large physical barriers. We save for another day the issue of whether

Section 4306(a) may be violated in other factual scenarios not present in

this case.

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