Opinion

Com. v. Strawn, S., Jr.

Court: Superior Court of Pennsylvania
Filed: Jan 13, 2020
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 10.1%

characterizing as a “legal nullity” a pro se Pa.R.A.P. 1925(b) statement filed by an appellant who was represented by counsel

How later courts described this case

characterizing as a “legal nullity” a pro se Pa.R.A.P. 1925(b) statement filed by an appellant who was represented by counsel
holding that there is no constitutional right for a represented defendant to act as co-counsel

Written by the judges who cited it.

The opinion

J-S57043-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

STEPHEN STRAWN, JR., :

Appellant : No. 702 MDA 2019

Appeal from the Judgment of Sentence Entered November 27, 2018

in the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0001996-2017

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 13, 2020

Stephen Strawn, Jr. (“Strawn”), pro se,1 appeals from the judgment of

sentence entered following his conviction of driving under the influence—

general impairment (“DUI”), and the summary offenses of driving while

license is suspended or revoked (DUI related), and driving vehicle at safe

speed.2 We affirm.

On August 18, 2017, at about 2:19 a.m., Londonderry Township Police

Officer Scott Firestone (“Officer Firestone”) observed a silver Ford Focus

automobile traveling westbound on Horseshoe Pike, at an unreasonable

speed. After stopping the vehicle, Officer Firestone detected that the driver,

____________________________________________

1The trial court conducted a hearing pursuant to Commonwealth v. Grazier,

713 A.2d 81 (Pa. 1998), and appointed standby counsel to assist Strawn.

2 See 75 Pa.C.S.A. §§ 3802(a)(1), 1543, 3361.

J-S57043-19

Strawn, had an odor of alcohol on his breath. Strawn admitted to Officer

Firestone that he had consumed two shots and one beer prior to driving.

During the vehicle stop, Strawn was unable to produce identification,

but provided Officer Firestone with his name and date of birth. Upon checking

Strawn’s information, Officer Firestone discovered that Strawn’s operating

privileges were suspended/expired.3 Strawn consented to a breathalyzer test,

but declined to perform a field sobriety test. Later, Strawn refused to take a

blood alcohol content test.

In its April 2, 2019, Opinion, the trial court summarized the extensive

procedural history underlying the instant appeal, which we adopt for the

purpose of this appeal, with the following addendum. See Trial Court Opinion,

4/2/19, at 2-7. On April 2, 2019, the trial court denied Strawn’s post-sentence

Motion. Thereafter, Strawn filed the instant timely appeal, followed by a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of

on appeal.

Strawn does not include a statement of questions involved in his

appellate brief, as is required by Pa.R.A.P. 2116. Rule 2116 provides, in

relevant part, as follows:

General rule. The statement of the questions involved must

state concisely the issues to be resolved, expressed in the terms

and circumstances of the case but without unnecessary detail. The

____________________________________________

3 It was subsequently determined that Strawn’s operating privileges had

expired on June 30, 2001.

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statement will be deemed to include every subsidiary question

fairly comprised therein. No question will be considered

unless it is stated in the statement of questions involved or

is fairly suggested thereby. Each question shall be followed by

an answer stating simply whether the court or government unit

agreed, disagreed, did not answer, or did not address the

question. If a qualified answer was given to the question,

appellant shall indicate the nature of the qualification, or if the

question was not answered or addressed and the record shows

the reason for such failure, the reason shall be stated briefly in

each instance without quoting the court or government unit below.

Pa.R.A.P. 2116 (emphasis added). Thus, we could deem all of Strawn’s issues

waived, as they are not included in a statement of questions involved. See

id. We recognize that Strawn has chosen to proceed pro se. However, pro

se status confers no special benefit upon a litigant, and any person choosing

to represent himself in a legal proceeding, must assume, to a reasonable

extent, his lack of expertise and legal training will be his undoing.

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005).

Nevertheless, to the extent that we are able to discern Strawn’s claims, we

decline to find waiver in this instance.

Strawn first challenges the denial of his pretrial suppression Motion.

See Brief for Appellant at 5 (unnumbered). Strawn appears to challenge

whether probable cause existed to justify the vehicle stop effectuated by

Officer Firestone. Id. Strawn states that Officer Firestone stopped Strawn’s

vehicle for driving at an unsafe speed. Id. However, Strawn takes issue with

the Commonwealth’s evidence, particularly Officer Firestone’s testimony that

Strawn “was going faster than what I believe was the posted speed.” Id.

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(citation omitted). According to Strawn, Officer Firestone testified that Strawn

was traveling at over 50 miles per hour, five miles per hour over the posted

speed limit. Id. at 6 (unnumbered). Strawn contends that Officer Firestone

did not use a testing device to determine his speed, nor did a second officer

testify regarding Strawn’s speed. Id. at 6-7 (unnumbered). Strawn claims

that a second officer’s testimony is necessary to establish that he exceeded

the speed limit. Id. (unnumbered).

Our standard of review of an order denying a motion to suppress is as

follows:

Our 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, we are bound by these findings and may

reverse only if the court’s legal conclusions are erroneous. Where,

as here, 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 law of the courts below are

subject to our plenary review.

Commonwealth v. Kemp, 195 A.3d 269, 275 (Pa. Super. 2018) (citations

and internal quotation marks omitted).

In its Opinion filed on June 19, 2018, the suppression court set forth an

extensive analysis of the law, evaluated the totality of the circumstances

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J-S57043-19

establishing probable cause to effectuate a vehicle stop, and concluded that

Strawn’s claim lacks merit. See Suppression Court Opinion, 6/19/18, at 4-

17. We agree with the sound reasoning of the suppression court, as set forth

in its Opinion, and affirm on this basis with regard to Strawn’s first claim. See

id.

In his second claim, Strawn challenges the sufficiency of the evidence

underlying the verdict, and the verdict as against the weight of the evidence.

See Brief for Appellant at 27 (unnumbered). Strawn first directs our attention

to the Criminal Information, which did not state the speed at which Strawn

was traveling. Id. Strawn argues that Officer Firestone failed to produce a

certificate of accuracy regarding his speedometer, and directs our attention to

contradictions between Officer Firestone’s testimony at the preliminary

hearing and his trial testimony. Id. at 28-29 (unnumbered). Strawn further

sets forth other, purportedly contradictory testimony, and challenges Officer

Firestone’s credibility. Id. at 30 (unnumbered). Strawn also directs our

attention to statutes and regulations regarding the testing of breathalyzer

devices for accuracy. Id. at 31-33 (unnumbered). According to Strawn,

“Officer Firestone has offered false testimony to all aspects of a pre-arrest

breath test[.]” Id. at 34 (unnumbered).

In its Opinion filed on April 2, 2019, the trial court set forth the

appropriate standard of review and applicable law, addressed Strawn’s claim,

and concluded that it lacks merit. See Trial Court Opinion, 4/2/19, at 9-13

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(addressing the sufficiency and weight claims), 14-18 (addressing Strawn’s

assertions regarding the breathalyzer testing device). We agree with the

sound reasoning of the trial court, and affirm on the basis of its Opinion with

regard to these claims. See id.

Strawn next presents a series of claims under the general heading,

“Abuse of Discretion.” Brief for Appellant at 38 (unnumbered). As best as we

are able to discern, Strawn first challenges the trial court’s refusal to consider

certain pro se pre-trial Motions, which he filed while he was represented by

counsel. See id. at 40-41.

Our review of the record discloses that the charges were lodged against

Strawn on September 25, 2017. The trial court appointed counsel for Strawn

on November 11, 2017. On December 7, 2017, Strawn filed pro se pre-trial

Motions for dismissal of the charges. On December 22, 2017, Strawn’s court-

appointed attorney filed counseled Omnibus Pre-Trial Motions seeking the

dismissal of the charges based upon improprieties at the preliminary hearing

and a violation of Pa.R.Crim.P. 571. Strawn, pro se, also sought habeas

corpus and other relief. The trial court denied Strawn’s pro se Motions,

without prejudice to pursue his right to relief through a counseled motion.

A defendant has no right to hybrid representation. Commonwealth v.

Ellis, 626 A.2d 1137, 1139 (Pa. 1993); see also Commonwealth v. Ali, 10

A.3d 282, 293 (Pa. 2010) (characterizing as a “legal nullity” a pro se Pa.R.A.P.

1925(b) statement filed by an appellant who was represented by counsel);

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Commonwealth v. Colson, 490 A.2d 811, 822 (Pa. 1985) (holding that there

is no constitutional right for a represented defendant to act as co-counsel).

Because Strawn was represented by counsel at the time the trial court denied

his pro se Motions, he is not entitled to relief.

Strawn again appears to contest the Commonwealth’s failure to provide

analysis and data regarding the accuracy of the portable breathalyzer device

used by Officer Firestone. Brief for Appellant at 44 (unnumbered). As set

forth above, this claim lacks merit, for the reasons set forth in the trial court’s

April 2, 2019, Opinion. See Trial Court Opinion, 4/2/19, at 14-18.

Strawn next asserts that he was denied his right to counsel during his

preliminary hearing. See Brief for Appellant at 41. The Sixth Amendment

right to the assistance of counsel attaches at the initiation of formal judicial

proceedings against an individual by way of formal charge, preliminary

hearing, indictment, information, or arraignment. Commonwealth v.

Briggs, 12 A.3d 291, 324 (Pa. 2011). Once the Sixth Amendment right to

counsel attaches, “the prosecutor and police have an affirmative obligation

not to act in a manner that circumvents and thereby dilutes the protection

afforded by the right to counsel.” Maine v. Moulton, 474 U.S. 159, 171

(1985).

The determination whether particular action by state agents

violates the accused’s right to the assistance of counsel must be

made in light of this obligation. Thus, the Sixth Amendment is not

violated whenever—by luck or happenstance—the State obtains

incriminating statements from the accused after the right to

counsel has attached. However, knowing exploitation by the State

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of an opportunity to confront the accused without counsel being

present is as much a breach of the State’s obligation not to

circumvent the right to the assistance of counsel as is the

intentional creation of such an opportunity. Accordingly, the Sixth

Amendment is violated when the State obtains incriminating

statements by knowingly circumventing the accused’s right to

have counsel present in a confrontation between the accused and

a state agent.

Id. at 176. Although a defendant is entitled to counsel at the preliminary

hearing, a defendant is not entitled to relief where no prejudice results from

counsel’s absence. See Commonwealth v. Melnyczenko, 358 A.2d 98, 99

(Pa. Super. 1976) (citing Commonwealth v. Geiger, 316 A.2d 881, 883 (Pa.

1974), and determining that an arraignment was not fatally defective

where the defendant appeared pro se and entered a plea of not guilty, where

counsel was appointed shortly after arraignment, and defendant’s ability to

present a defense suffered no prejudice).

Here, the preliminary hearing took place on October 26, 2017. Counsel

for Strawn entered his appearance on November 11, 2017. The record reflects

that counsel represented Strawn from that date until Strawn chose to proceed

pro se. There is nothing of record demonstrating that Strawn suffered

prejudice resulting from the lack of counsel at the preliminary hearing.

Consequently, we cannot grant him relief on this claim. See Melnyczenko,

358 A.2d at 99; Commonwealth v. Jones, 308 A.2d 598, 602-03 (Pa. 1973)

(finding that an arraignment was not fatally defective where the defendant

appeared pro se, signed a pauper’s oath, and entered a plea of not guilty

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J-S57043-19

where counsel was appointed shortly after arraignment and defendant’s ability

to present a defense suffered no prejudice).

To the extent that Strawn raises additional claims that are unsupported

by citation to the record and applicable legal authorities, we deem such claims

waived. See Pa.R.A.P. 2119(a) (stating that each point in the argument must

be “followed by such discussion and citation of authorities as are deemed

pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924-25 (Pa. 2009)

(stating that claims are waived “where an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review” and holding

appellant’s single-sentence arguments constituted “the type of cursory legal

discussion which is wholly inadequate to preserve an issue for appellate

review.”).

In the final section of his brief, entitled “Constitutional Issues,” Strawn

sets forth bald allegations of constitutional violations, without citation to

pertinent authorities or to the places in the record where these violations

purportedly occurred.4 Accordingly, these claims are waived. See Pa.R.A.P.

2119(a); Johnson, 985 A.2d at 924-25.

Judgment of sentence affirmed.

____________________________________________

4 We note that Strawn cites 75 Pa.C.S.A. § 1547(b), and cases filed by the

Pennsylvania Commonwealth Court, which address the civil penalties for

refusing a blood alcohol test. Strawn fails to argue how these authorities are

pertinent or relevant in this criminal proceeding.

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J-S57043-19

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothono

Date: 1/13/2020

- 10 -

Circulated 12/09/2019 01:42 PM

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CLERK OF COURTS

LEBANON.PA

2u18 JUN 19 PM 2 51

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA : NO. CP-38-CR-1996-2017

STEPHEN STRAWN

ORDER OF COURT

AND NOW, this 19th day of June, 2018, in accordance with the

attached Opinion, the DEFENDANT'S Motion to Dismiss based upon his

challenge to Officer Firestone's traffic stop is DENIED. The DEFENDANT

is to appear at the Criminal Call of the List scheduled for July 10, 2018 at

8: 30a.m. in the designated Court Room. His trial is scheduled to commence

at 8:30 a. m. on July 23, 2018 in Court Room #3. Any trial or sentencing in

the above case is to be conducted before this jurist.

BY THE COURT:

BL/I�

BRADFORD H. CHARLES

BHC/pmd

cc: Matthew Mellon, Esquire// District Attorney's Office-�+

Stephen Strawn// c/o LCCF, 730 E. Walnut St., Lebanon PA 17042 � I

Jason J. Schibinger, Esquire// PO Box 49 Lebanon PA 17042-fhrii-/eq

Court Administration (order only) --�

ENTEF,ED & FILE'.J

CLERK OF c OURTS

LEBANON, PA

2C1B 1..1l!N 19 pr, 2 5z

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA : NO. CP-38-CR-1996-2017

STEPHEN STRAWN

APPEARANCES

Matthew Mellon, Esquire For Commonwealth of Pennsylvania

DISTRICT ATTORNEY'S OFFICE

Stephen Strawn pro se

Jason J. Schibinger, Esquire Stand-by counsel for Stephen Strawn

OPINION BY CHARLES, J., June 19, 2018

Can a pol ice officer initiate a traffic stop based upon an

unsubstantiated estimate of speed? The Commonwealth argues that when

a police officer observed the DEFENDANT driving past his parked cruiser

at a speed estimated to significantly exceed the posted I im it, the officer

was justified in effectuating a traffic stop. The DEFENDANT responds by

stating that he was doing nothing other than "driving while black". We issue

this opinion to address the viability of the traffic stop that led to

DEFENDANT's arrest.

I. FACTS

The DEFENDANT is a self-represented litigant who has filed almost

weekly motions to challenge the legitimacy of the charges lodged against

him. For a multitude of reasons, this Court has rejected all of the

DEFENDANT's numerous arguments except one before us today. We issue

this opinion to address the DEFENDANT's challenge to the legitimacy of

the traffic stop that led to his arrest. On that issue, we conducted a Factual

Hearing on May 10, 2018. At that hearing, we learned the following facts.1

In the early morning of August 18, 2017, Officer Scott Firestone of

the South Londonderry Township Police Department was sitting in a marked

police cruiser observing traffic proceeding on US Route 322, otherwise

known as the Horseshoe Pike. Shortly after two o'clock in the morning,

Officer Firestone observed a silver Ford Focus travelling at a high rate of

speed past his location. Officer Firestone pulled onto Route 322 and began

to follow the Ford Focus vehicle.

Officer Firestone testified that when he pulled onto Horseshoe Pike,

he was located approximately one-quarter of a mile to the east of the

intersection of Route 117 and Horseshoe Pike. 2 He also testified that he

accelerated his own police cruiser to sixty (60) miles per hour and was

barely able to get closer to the Ford Focus. Officer Firestone therefore

engaged his lights and siren. After he did so, the Ford Focus proceeded to

We prepared this Opinion without a transcript. The facts set forth herein are based upon our notes and recollection.

We are familiar with this intersection. To the west, route 322 enters the village ofCampbelltown where houses and

businesses are located on both sides of the roadway. To the north, Rt. 117 enters a residential area.

turn right onto Route 117 at a speed far greater than was appropriate for

such a turn. During the turn, the Focus proceeded into the oncoming lane

of traffic on Route 117 before returning to the correct lane of travel. After

Officer Firestone turned his police cruiser onto Route 117, the Ford Focus

did eventually pull to the side of the road.

In the ensuing encounter, Officer Firestone learned that the

DEFENDANT was the driver of the Focus vehicle. Officer Firestone learned

that the DEFENDANT did not possess a valid Pennsylvania Driver's

License. In addition, Officer Firestone detected evidence that the

DEFENDANT had been consuming alcohol. He therefore asked the

DEFENDANT to perform field sobriety tests. The DEFENDANT refused. He

also transported the DEFENDANT to a hospital for a blood test. The

DEFENDANT refused to provide a sample of his blood.

Officer Firestone filed charges for Driving Under the Influence of

Alcohol, Driving while Operating Privileges are Suspended or Revoked-DUI

related and several other Summary Offenses. The DEFENDANT was

appointed counsel. He subsequently "fired" his attorney. We conducted a

Grazier Hearing on February 7, 2018. As a result of that hearing, we

permitted the DEFENDANT to represent himself and we appointed Attorney

Elliott R. Katz to serve as stand-by counsel. Following the Pre-Trial

Hearing that occurred on May 8, 2018, we solicited legal briefs from both

parties. We have now received those briefs and we issue this opinion to

address the DE FEN DAN T's challenge of the traffic stop conducted by

Officer Firestone.

II. DISCUSSION

A. General Precepts

In order to stop a motorist, a police officer must have "a rticu I able and

reasonable grounds" or "probable cause" to suspect a violation of

Pennsylvania's Motor Vehicle Code. This precise standard to analyze

traffic stops has been in a state of flux since the decision of Pennsylvania's

Supreme Court in Commonwealth v. Whitmyer, 668 A.2d 1113 (Pa. 1995).

In Whitmyer, Pennsylvania's Supreme Court had declared that probable

cause was necessary for a police officer to conduct a traffic stop. Following

Whitmyer, Pennsylvania's Legislature enacted a statute 75 Pa. C.S.A.

§6308, that authorized traffic stops whenever police possess "articulable

and reasonable grounds" to suspect a violation of the Vehicle Code. Since

the enactment of § 6308, Courts have employed both the "probable cause"

standard and the "reasonable ground" standard often interchangeably.

In Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008), the Supreme

Court affirmed the constitutionality of 75 Pa. C.S.A. § 6308. However, the

Court in Chase declared that § 6308 applies only to "investigatory stops"

where there is a need for the motorist to stop so that police can secure

additional information necessary to enforce the Vehicle Code. Chase made

it clear that § 6308 "does not allow all stops to be based on the lower

quantum - it merely allows this for investigatory stops, consistent with the

requirements of both the Federal and State constitutions." Id at page 116.

Where a vehicle stop is effectuated due to a violation of the Motor

Vehicle Code that does not require additional investigation, it must be

supported by probable cause. Commonwealth v. Feczko, 10 A.3d 1285

(Pa. Super. 2010). In the case of a traffic stop for speeding, Pennsylvania's

Superior Court has declared that "probable cause" is the proper standard.

Commonwealth v. Salter, 121 a. 3d 987 (Pa. Super. 2015). This is because

"When a vehicle is stopped, nothing more can be determined as to the

speed of the vehicle when it was observed while traveling on a highway."

Id at page 993.

In determining whether probable cause exists, "there is no

requirement that an actual violation be established". Commonwealth v.

Vincett, 806 A.2d 31 (Pa. Super. 2002). Probable cause has been defined

as existing "where the facts and circumstances within the knowledge of the

officer are based upon reasonably trustworthy information and are sufficient

to warrant a man of reasonable caution in the belief that the suspect has

committed or is committing a crime." Commonwealth v. Joseph, 34 A.3d

855, 863 (Pa. Super. 2011 ); Commonwealth v. Thompson, 985 A.2d 928,

931 (Pa. 2009). "It is the facts and circumstances within the personal

knowledge of the police officer that frames the determination of the

existence of probable cause." Commonwealth v. Galendez, 23 A.3d 1042,

1046 (Pa. Su per. 2011). Ascertaining probable cause requires an analysis

of the totality of circumstances known to the police officer. Galendez,

supra.

In this case, Officer Firestone engaged his lights and siren because

he believed the DEFENDANT was driving too fast for existing conditions.

After Officer Firestone engaged his lights and siren, the DEFENDANT was

seen making an improper and dangerous right-hand turn. The question

before this Court today is whether either of the observations by Officer

Firestone provided him with probable cause to effectuate a traffic stop. In

deciding this issue, we will address both the speeding and the improper

rig ht-hand turn.

(a) Speeding

The DEFENDANT claims that a traffic stop cannot be predicated

solely upon a police officer's opinion of a vehicle's speed. In support of

this position, the DEFENDANT relies primarily upon the Pennsylvania

Supreme Court decision of Commonwealth v. Whitmyer, 668 A.2d 1113

(Pa. 1995). In Whitmyer, a Pennsylvania State Police Trooper opined that

the Defendant was traveling roughly 15 miles per hour in excess of the

posted speed lfmit. He based his opinion upon his years of experience as

a State Police Trooper and his own police cruiser's speedometer. However,

the trooper followed the Defendant for only two-tenths of a mile. The

Supreme Court held that the trooper's traffic stop was not supported by

probable cause. Emphasizing that a Pennsylvania statute authorizes use

of a speedometer as a speed-timing device only when the speed is

measured for three-tenths of a mile or more, the Supreme Court stated:

"If the trooper was unable to clock Appellee for three-

tenths of a mile or observe the conditions that would

warrant a citation for driving at an unsafe speed, there is

no further evidence that could be obtained from a

subsequent stop and investigation. Thus, we conclude

that the fruits of the u n lawfu I stop were correctly

suppressed." Id at page 1118.

As can be imagined, Whitmyer spawned a multitude of different

challenges to traffic stops across the Commonwealth of Pennsylvania. As

noted above, Whitmyer also prompted the Pennsylvania Legislature to

enact a statute to ameliorate the practical problems for pol ice that

Whitmyer engendered. Ultimately, more recent Appellate Court decisions

have tended to interpret Whitmyer narrowly.

According to the Westlaw search engine, eighty-four (84) Appellate

cases have cited Whitmyer since 1995. Not all of these cases involved a

traffic stop for speeding. However, several did. Without promising to be

comprehensive, we will endeavor to highlight the key cases decided since

Whitmyer where a Defendant challenged a traffic stop based upon an

officer's opinion regarding the speed of a motor vehicle:

( 1) Commonwealth v. Butler, 856 A.2d 131 (Pa. Super. 2004)

In Butler, Philadelphia police officers observed the

Defendant's vehicle traveling at 50 to 60 miles per hour in a

posted 25 mile per hour zone. The Defendant also weaved in

and out of traffic and even traversed onto the concrete median.

Citing the fact that the Defendant was driving down a populated

street in a city, the Superior Court stated that police had "more

than sufficient probable ca use that Butler had violated the

Vehicle Code. The initial stop was therefore justified." Id at

page 135.3

(2) Commonwealth v. Fredericks, 2015 WL 7722041 (Pa. Su per.

2015)4

In this case, a police trooper utilized a radar gun to

measure the speed of Defendant's vehicle at 82 miles per hour

in a 65 mile per hour zone. The officer decided to afford the

Defendant with "a break" by not citing him for speeding.

Because the Defendant was not charged with speeding, the

trooper did not verify the certificate of accuracy for his radar

gun. Because of this, the Defendant argued that his traffic stop

should be suppressed. The Superior Court disagreed and

stated:

"We hold Trooper Zaykowski had probable cause to stop

Appellant for speeding, even though the Commonwealth

could not produce at trial documentation showing that the

radar gun used was an approved, properly calibrated

speed-testing device. Trooper Zaykowski did not need to

have sufficient evidence to convict Appellant of speeding

when he stopped him. Rather, he needed only probable

cause. He met that standard here. His radar gun timed

Appellant's speed at 82 mph in a 65 mph zone - almost

Interestingly, some of the evidence used by the police to determine probable cause occurred after the police officer

had activated her lights and sirens. Thus, post-activation driving was deemed to be relevant to the issue of probable

cause.

Fredericks is a Memorandum Opinion. It is therefore not binding precedent. We cite it only as persuasive authority.

20 mph over the speed limit. True, the Commonwealth

lacked documentation showing the radar gun's accuracy,

because Trooper Zaykowski did not record which unit he

used. Such documentation, however, is not necessary to

establish probable cause.' ... Importantly, the actual

accuracy of the radar gun is the wrong inquiry in

determining probable cause. Rather, the proper inquiry is

whether Trooper Zaykowski reasonably believed it was

accurate.' The suppression inquiry is analyzed from the

perspective of the officer, and there is no requirement that

an actual Vehicle Code Violation be established, only that

there be a reason ab le basis for the officer's action in

stopping the vehicle." Commonwealth v. Vincett, 806

A.2d 31, 33 (Pa. Super. 2002)."

(3) Commonwealth v. Heberling, 6787 A.2d 794 (Pa. Super. 1996)

Police observed a vehicle traveling "at an extreme rate of

speed" in a 45 mile per hour zone while he was one-tenth of a

mile from an intersection and two- to three-tenths of a mile in

front of the crest of a hill. The Defendant was stopped before

reaching either of these points. Weather conditions were clear.

No other traffic was affected, nor were any pedestrians put at

risk. Under these circumstances - which are very close to the

ones at bar - the Superior Court affirmed the traffic stop and

stated:

"There is no question that speeding alone does not

constitute a violation of this statute (driving at an unsafe

speed). There must be proof of speed that is

unreasonable or imprudent under the circumstances (of

which the re must also be proof), which are the

"conditions" and "actual and potential hazards then

existing" of the roadway. These circumstances may

include not only the amount of traffic, pedestrian travel

and weather conditions, but also the nature of the roadway

itself (e.g., whether 4-lane interstate, or rural; flat and

wide, or narrow and winding over hilly terrains; smooth

surface or full of potholes; clear or under construction with

abrupt lane shifts.) It is circumstances under which one's

speed may be found sufficiently unreasonable and

imprudent to constitute a violation of§ 3361, even if the

driver has adhered to the posted speed limit.. ..

Approaching a hillcrest and approaching an intersection

are "conditions" specifically enumerated in the statute that

require a driver to proceed at a safe and appropriate

speed. When Appellant drove at an excessive speed

under these conditions, she violated § 3361." Id at pages

795-796; 797.

(4) Commonwealth v. Judy, 2016 WL 6820539 (Pa. Super. 2016)5

In this case, a Pennsylvania State Police Trooper followed

the Defendant's vehicle on US Route 30 for a quarter of a mile.

Using a calibrated speedometer in his police cruiser, the trooper

indicated that the Defendant was traveling 60 miles per hour in

a 40 mile per hour zone. There were no other vehicles on the

roadway. At no time did the vehicle leave its proper lane of

travel. The Suppression Court held that the officer's estimate

of speed over one-quarter of a mile, did not rise to the level of

probable cause necessary to support a traffic stop. Based upon

Whitmyer, a panel of the Superior Court affirmed the Trial

Court's decision and declared the officer's use of a

speedometer to measure the Defendant's speed over a distance

Like Fredericks, Judy was a Memorandum Opinion and is being cited a persuasive, as opposed to binding,

precedent.

of less than three-tenths of a mile to be insufficient to create

probable cause.

(5) Commonwealth v. Little, 903 A.2d 1269 (Pa. Super. 2006)

In Little, the pol ice observed a Defendant approaching

the crest of a hill which obscured vision of an intersection on

the other side of the crest. The officer described the

Defendant's vehicle as accelerating "to its fullest capability."

The officer estimated that the Defendant's vehicle was traveling

40-45 miles per hour in a 35 mile per hour zone. Relying upon

Whitmyer, the Defendant challenged the traffic stop. The

Superior Court rejected the Defendant's challenge and stated

that the officer's testimony was sufficient to establish

reasonable grounds for the belief that the Defendant violated

the Motor Vehicle Code.

(6) Commonwealth v. Minnich, 874 A.2d 1244 (Pa. Super. 2005)

The police officer in Minnich observed the Defendant

drive around a curve and over a hill "at a very high rate of

speed" on an icy roadway. Emphasizing that the Defendant was

not only speeding, but was also proceeding around a blind

curve, the Superior Court concluded:

"The question remains, then, whether the act of speeding,

at the approach to an intersection, when the speed is

estimated by the observing officer, with no other traffic in

the area, when the officer observes "a lot of dust and

cinders" blowing up from the icy roadway as the vehicle

comes around a sharp curve as it crests a hill, establishes

a violation of the Driving-Vehicle-at-Safe-Speed statute.

We have carefully reviewed the record and conclude that

the Suppression Court's factual findings of the

surrounding circumstances are sufficient for the trier of

fact to have concluded beyond a reasonable doubt that

Appellant was operating his vehicle at an unsafe speed.

Accordingly, we conclude that the stop of Appellant's

vehicle was lawful. .. " Id at page 1238.

(7) Commonwealth v. Parrish, 2016 WL4849251 (Pa. Super.

2016)6

In Parrish, a police officer was parked along a roadway

with a 35 mile per hour speed limit. The officer observed a

vehicle traveling "at a high rate of speed". Based upon his

experience, the officer estimated that the vehicle was traveling

about 65 miles per hour. In affirming the validity of the traffic

stop, the Superior court chastised the Defendant for conflating

probable cause with proof beyond a reasonable doubt. The

Court stated:

"Establishing approved speed timing methods, § 3368 only

speaks to the evidence necessary for a conviction.

Appellant would have us replace the current probabilistic

standard required for traffic stops with one hitherto

confined to formal adjudicatory proceedings. Adopting

such a position wou Id graft an impossible burden into the

law: The need to have enough evidence before a

conviction before pulling a vehicle over .... In this case,

Parrish is also a Memorandum Opinion. It is not therefore binding precedent. We cite it only as persuasive

authority.

Officer Carpenter was patrolling a stretch of highway with

which he was well familiar. Carpenter knew the posted

speed limit and the usual pace of traffic along Hellam

Street. After observing Appel I ant's vehicle, Carpenter's

experience with traffic enforcement enabled his to

estimate Appellant's speed as being nearly doubled the

posted speed I im it."

Based upon this reasoning, the Court determined that the

officer's estimate of the Defendant's speed was sufficient to

create probable cause.

(8) Commonwealth v. Perry, 982 A.2d 1009 (Pa. Super. 2009)

Perry was a case emanating from Lebanon County where

this jurist denied a Defendant's Suppression Motion. In Perry,

an Annville Township Police Officer observed a vehicle stopped

at the intersection of US Route 422 and Route 934. When the

light turned to green, the vehicle "took off at a high rate of

speed". To investigate, the officer had to speed his cruiser to

40 miles per hour in a 25 mile per hour zone. The Defendant

challenged the subsequent traffic stopped based upon

Whitmyer. The Superior Court rejected this challenge and

stated:

"Instantly, Appellant drove 15 miles per hour faster than

the posted speed limit of 25 miles per hour on a road that

was wet and slushy. Because Minnich established that

potential danger is sufficient to satisfy the probable cause

standard, we discern no legal error in concluding that the

instant facts are sufficient to meet the lower standard of

reasonable suspicion ... In conclusion, we hold that

Minnich, which established that speeding may create

sufficient potential for causing an accident under certain

circumstances to warrant a finding of probable cause, also

applies to the current standard of reasonable suspicion.

Accordingly, the Suppression Court did not err in

concluding Officer Robinson had reasonable suspicion to

stop Appellant." Id at page 1012-1013.

(9)Commonwealth v. Ulman, 902 A.2d 514 (Pa. Super. 2006)

Police officers were stopped along Route 30 in York at

approximately 2am when they observed a Defendant traveling

at a "high rate of speed". The officers estimated that the speed

was approximately 60-65 miles per hour in a 35 mile per hour

zone. The Superior Court rejected the Defendant's Suppression

Motion, stating that the officer "was entitled to draw reasonable

inferences from the facts in light of his twelve years of

experience. Based on this experience and the facts as he

perceived them, [the officer] reasonable concluded that

violations of the Motor Vehicle Code were being committed." Id

at page 518.

(10) Commonwealth v. Wilbert, 858 A.2d 124 7 (Pa. Super. 2004)

In this case, a police officer witnessed the Defendant

traveling from the opposite direction and traveling toward her

cruiser at a speed of roughly 60 miles per hour in a 45 mile per

hour zone. The officer also noticed a nauseating odor coming

from the vehicle. She therefore turned around and began

following the vehicle. During this period of time, the Defendant

crossed the center line and the fog line of the roadway on

numerous occasions. Citing Whitmyer, the Defend ant

challenged the viability of the traffic stop. The Superior Court

rejected the challenge. Based upon a totality of information

presented, the Court held that the traffic stop was appropriate.

As is evident from the decisional precedent outlined above, every

case involving an officer's estimate of speed is different. Each must be

evaluated based upon the unique factual circumstances apparent to the

police officer when he effectuated the traffic stop. In this case, Officer

Firestone was aware of the following:

• That it was 2 a.m. and that traffic on US Route 322 was light;

• That US Route 322 is one of the most heavily traveled roadways in

Lebanon County. Even at 2 a.m., vehicles could be expected to travel

on Route 322.

• That the posted speed limit at Route 322 where Officer Firestone was

parked was 45 miles per hour;

• That Officer Firestone perceived that the DEFENDANT'S vehicle was

traveling significantly in excess of the posted speed limit as it passed

the officer's location;

• That the intersection of Route 322 and Route 117 is located

approximately one-quarter of a mile to the west of where Officer

Firestone was located. The DEFENDANT's vehicle was traveling

toward this intersection.

• That the town of Campbelltown is located immediately on the other

side of the intersection of Route 322 and Route 117. Th is town is

comprised of closely-spaced residences, churches and businesses.

The speed limit in Campbelltown is lower than the speed limit where

the officer first observed the DEFENDANT's vehicle.7

• That a residentia I housing development is situated to the north of the

intersection of Route 117 and Route 322 on Route 117. 7

• That any motorist traveling at the speed observed of the

DEFENDANT'S vehicle would create a traffic hazard at the

intersection of Route 322 and Route 117, or traveling along either

Route 322 or Route 117 on the other side of the intersection.

• When Officer Firestone pulled onto Route 322 in order to follow the

DEFENDANT's vehicle, he had to accelerate quickly to reach 60 miles

per hour and did not appreciably catch up to the DEFENDANT.

• Based upon his experience, Officer Firestone estimated the

DEFENDANT was speeding at least 15 miles per hour in excess of

the posted speed limit.

It is the opinion of this Court that Officer Firestone had probable

cause to effectuate a traffic stop of the DEFENDANT's vehicle. While only

one or two factors outlined above may not establish probable cause, the

We do not recall specific testimony at the Suppression Hearing regarding the existence of Campbelltown and the

layout of the roadways at or near the intersection of Route 322 and Route 117. However, we know that the intersection

is located in Officer Firestone's jurisdiction and he is familiar with the area. This Court is also familiar with the area

and we have taken judicial notice of the configuration of the roadways and surrounding buildings.

totality of all of the above clearly establishes that Officer Firestone was

justified in stopping the DEFENDANT.

(b) I mp roper Rig ht-Hand Turn

We accept as self-evident that Officer Firestone could conduct a

traffic stop of any motorist who performed a right-hand turn similar to the

one the DEFENDANT attempted from US Route 322 onto Route 117.

Whenever a motorist tries to accomplish a turn at an excessive rate of

speed and drifts into the oncoming lane of travel as a result, that motorist

has violated Pennsylvania's Motor Vehicle Code. Section 3331 of the Code

states that "The driver of a vehicle intending to turn right shall approach

the turn and make the turn as close as practicable to the right-hand curb or

edge of the roadway." 75 Pa.C.S.A. § 3331. Clearly, the DEFENDANT's

turn from Route 322 onto Route 117 did not comport with this standard.

The prob I em in this case is that Officer Firestone had already

engaged his lights and siren when he observed the DEFENDANT's improper

turn. The DEFENDANT now claims that his improper turn is immaterial to

the question of whether police cou Id effectuate a lawfu I traffic stop. The

DEFENDANT argues that anything he did after Officer Firestone engaged

his lights and siren is irrelevant to the lawfulness of the ultimate traffic stop.

It is true that a traffic stop officially "occurs" when a police officer

activates lights and siren. Commonwealth v. Livingstone, 174 A.3d 609

(Pa. 2017). However, this precept does not automatically lead to the

conclusion that everything that occurs thereafter should be deemed

irrelevant. To the contrary, police cannot and should not ignore the

Defendant's driving violations after lights and siren are activated. In the

opinion of this Court, unsafe driving is unsafe, regardless of whether it

occurs before or after a police officer engages his lights and siren.

In Commonwealth v. Scattone, 672 A.2d 345 (Pa. Super. 1996), a

police officer engaged his lights and siren to stop a vehicle based upon

information he received from a witness. After the lights and siren were

activated, the Defendant led police on a three (3) mile chase and committed

numerous traffic violations in the process. The Defendant defended against

his violations by claiming that police did not have probable cause to

effectuate an initial stop. He attempted to characterize probable cause as

a "condition precedent to validating police pursuit and a citizen's violating

of § 3733(a) for fleeing and attempting to allude police." Id at page 346.

Pennsylvania's Superior Court rejected the Defendant's position. The

Superior Court noted that citizens are not permitted to raise unlawfulness

of the arrest as a defense to a resisting arrest charge. In part because of

this, the Court concluded "A citizen is not permitted to avoid a via lation of

§3733(a) under the cloak of a no probable cause or articulable suspicion to

believe criminal activity is afoot by police."

In the opinion of this Court, the DEF EN DAN T's improper right turn

onto Route 117 provided separate and independent justification for Officer

Firestone's traffic stop. The mere fact that the improper right turn occurred

after Officer Firestone had engaged his lights and siren does not afford the

DEFENDANT with a defense to a charge of violating the Motor Vehicle

Code, nor does it erase the existence of probable cause based upon Officer

Firestone's observation of the improper turn. For this reason also, we

believe that Officer Firestone's traffic stop of the DEFENDANT was proper.

Ill. CONCLUSION

There is absolutely no evidence whatsoever that race played a role in

Officer Firestone's traffic stop of the DEFENDANT.8 However, Officer

Firestone did immediately perceive that the DEFENDANT'S vehicle was

traveling too fast and his perception was confirmed when he could not catch

the DEFENDANT's vehicle despite accelerating in own to 60 miles per hour.

If the DEFENDANT's speeding were not enough, Officer Firestone then

observed the DEFENDANT make a dangerous right-hand turn that would

have caused an accident had another vehicle been located on Route 117.

All of the above justified Officer Firestone's traffic stop. Therefore, the

events that occurred thereafter should not be suppressed. An Order to

effectuate these decisions will be entered today's date.

Indeed, given that the DEFENDANT's vehicle traveled past Officer Firestone's position in the middle of the night

at an area of the highway that was unlit and at a high rate of speed, we conclude that it was unlikely that Officer

Firestone even realized the race of the driver of the speeding vehicle.

Circulated 12/09/2019 01:42 PM

ENTE,1 D & Ff LE'.J

CLERK OF COURT0

LEBANDN,PA

2C1B �'UN 19 PP1 2 52

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEAL TH OF PENNSYLVANIA : NO. CP-38-CR-1996·2017

STEPHEN STRAWN

APPEARANCES

Matthew Mellon, Esquire For Commonwealth of Pennsylvania

DISTRICT ATTORNEY'S OFFICE

Stephen Strawn pro se

Jason J. Schibinger, Esquire Stand-by counsel for Stephen Strawn

OPINION BY CHARLES. J., June 19, 2018

Can a police officer initiate a traffic stop based upon an

unsubstantiated estimate of speed? The Commonwealth argues that when

a police officer observed the DEFENDANT driving past his parked cruiser

at a speed estimated to significantly exceed the posted limit, the officer

was justified in effectuating a traffic stop. The DEFENDANT responds by

stating that he was doing nothing other than "driving while black". We issue

this opinion to address the viability of the traffic stop that led to

DEFENDANT's arrest.

I. FACTS

The DEFENDANT is a self-represented litigant who has filed almost

weekly motions to challenge the legitimacy of the charges lodged against

him. For a multitude of reasons, this Court has rejected all of the

DEFENDANT's numerous arguments except one before us today. We issue

this opinion to address the DEFENDANT's challenge to the legitimacy of

the traffic stop that led to his arrest. On that issue, we conducted a Factual

Hearing on May 10, 2018. At that hearing, we learned the following facts.1

I n the ea rl y morn in g of Aug us t 1 8 , 2 0 1 7 , Officer Scott F i rest one of

the South Londonderry Township Police Department was sitting in a marked

police cruiser observing traffic proceeding on US Route 322, otherwise

known as the Horseshoe Pike. Shortly after two o'clock in the morning,

Officer Firestone observed a silver Ford Focus travelling at a high rate of

speed past his location. Officer Firestone pulled onto Route 322 and began

to follow the Ford Focus vehicle.

Officer Firestone testified that when he pulled onto Horseshoe Pike,

he was Io cat e d a pp r ox i mate I y on e-q u a rte r of a m ii e to the east of the

intersection of Route 117 and Horseshoe Pike. 2 He also testified that he

accelerated his own police cruiser to sixty (60) miles per hour and was

barely able to get closer to the Ford Focus. Officer Firestone therefore

engaged his lights and siren. After he did so, the Ford Focus proceeded to

lWe prepared this Opinion without a transcript. The facts set forth herein are based upon our notes and recollection.

We are familiar with this intersection. To the west, route 322 enters the village of Campbelltown where houses and

businesses are located on both sides of the roadway. To the north, Rt. 117 enters a residential area.

turn right onto Route 117 at a speed far greater than was appropriate for

such a turn. During the turn, the Focus proceeded into the oncoming lane

of traffic on Route 117 before returning to the correct lane of travel. After

Office r Firestone tu rn e d his po Ii c e c r u is e r onto Route 11 7 , the Ford Focus