Com. v. Nell, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

TODD ALLAN NELL : No. 477 MDA 2019

Appeal from the Order Entered February 15, 2019

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0006141-2018

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 15, 2020

The Commonwealth of Pennsylvania appeals from the order entered on

February 15, 2019, granting a motion to suppress filed by Todd Allan Nell.1

The Commonwealth claims the suppression court erred in finding the

investigating officer lacked probable cause to stop Nell for a violation of 75

Pa.C.S. § 3361, and its legal conclusions do not flow from its factual findings

as determined at the suppression hearing. After careful review, we affirm.

The court set forth the factual history as follows:

Officer Ryan Henry was called to the stand and he testified

that, on August 14, 2018 at approximately 2:10 a.m., he turned

onto Stock Street in Hanover Borough, York County. Immediately

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 The Commonwealth has indicated the court’s order will terminate or

substantially handicap its prosecution in the criminal matter. See Notice of

Appeal, 3/18/2019 (Rule 311(d) Certification); Pa.R.A.P. 311(d).

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upon making this turn, Officer Henry observed oncoming

headlights, which the officer estimated were travelling some forty

miles per hour. Officer Henry was “pretty sure” the vehicle was

travelling at a high rate of speed. The vehicle having passed him,

Officer Henry noted it was making a right onto North Carlisle

Street and Officer Henry, who would have been pointed 180

degrees from the suspect’s initial path of travel, turned left onto

Eichelberger Street with the intention of ending up behind the

suspect vehicle to better gauge its speed via pacing. Having

travelled through a series of alleys, the officer caught a glimpse

of taillights and stated that their distance evinced in him a belief

that the vehicle was travelling at a high rate of speed. The officer

testified that as he arrived at and turned onto Maple Avenue, he

observed the taillights to be some distance ahead. The officer

observed the vehicle to go up a slight incline and to disappear.

The officer testified that the vehicle accelerated away from an

intersection. Officer Henry stated that the vehicle approached

train tracks and veered to the left; however, as the road in

question is not a divided roadway, the officer could not be sure

that the vehicle was in the oncoming travel lane. More specifically,

the officer testified to the following:

It’s in the 400 block of Maple Avenue, and directly ahead of

the vehicle there’s a set of train tracks. The [t]rain tracks

are not -- they’re at an angle across Maple Avenue. Directly

after the train tracks, there’s a dip, a pretty significant one.

You’ll see on the video here it will show it, and then the

roadway continues to a slight gradual right-hand turn, which

if we were in daylight, you would see -- you can’t see down

the roadway from this angle here.

The officer, crossing the train tracks, activated his lights and

sirens and conducted a traffic stop of the vehicle. The officer

informed the [trial c]ourt that “[t]he speed limit on Stock Street

is 25; the speed limit on Carlisle Street is 35; and the speed limit

on Maple Avenue is 25 miles per hour, most of which is residential

in all three areas.” The officer described how traffic at that hour is

limited. The officer also opined that Hanover has pedestrians out

at that hour, but admitted that there were none to be seen in the

video. The officer also described how there is parking at various

points alongside the roadways on which the pursuit occurred.

On cross-examination, defense counsel confirmed with the

officer that this incident occurred in defense counsel’s own

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neighborhood. Defense counsel then elicited that the street

parking on Stock Street would not have been on [Nell’s] side of

the road. Discussing the beginning of the dashcam, the officer

agreed with defense counsel that there were no other cars in the

video. The officer admitted that his Affidavit of Probable Cause

contained no allegation of [Nell] running a red light or a stop sign

and the officer could not remember if [Nell] had properly utilized

turn signals. The following exchange then occurred:

Defense: And you don’t follow Eichelberger all the way up.

You turn into I think it’s an alley there?

Officer: There is an alley there.

Defense: It says do not enter?

Officer: Yes.

Defense: Right?

Officer: It sure does.

Defense: And that leads you to another alley?

Officer: Yes.

Defense: Which leads you to another alley, and you

eventually get back to Carlisle Street?

Officer: Yes.

Defense: Right?

Officer: Yep.

The officer also testified to the following:

Maple Avenue is not divided, so as far as weaving, I can’t

testify to that, but going over the train tracks, you can

clearly see the vehicle move to the left-hand side to avoid a

dip. The dip is clearly shown on the video because I hit it.

Finally, [the trial court noted] that the Commonwealth conceded

that any observations of speed in the officer’s vehicle were infirm

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as they intended to make no showing regarding “certifications, the

calibrations, and all that jazz.”

Suppression Court Opinion, 8/22/2019, at 3-6 (record citations omitted).

On November 7, 2018, Nell was charged with driving under the influence

of alcohol or controlled substance (3rd and/or subsequent offense), driving

vehicle at an unsafe speed, driving under the influence of controlled substance

(schedule I – 3rd or subsequent offense), driving under the influence of

controlled substance (schedule I, II, or III – 3rd or subsequent offense), driving

under the influence of alcohol or controlled substance (3rd and/or subsequent

offense), and driving under the influence of alcohol or controlled substance. 2

Nell filed a suppression motion in December of 2018. A hearing was held

on the matter on February 15, 2019. At the conclusion of the hearing, the

suppression judge explained his reasoning as follows:

So I turn to the facts of this case, … we have the officer

going down the road this way. [Nell] is coming this. They pass. He

believes he’s going too fast. He’s a police officer. Certainly, police

officers are trained to detect such [a] sort of thing, and he decides

to put forth a pursuit.

Instead of making a U-turn, I think the police officer was

pretty smart, he knew where [Nell] was probably headed. He

knew a quicker way to get there. He knows his jurisdiction, and

he took some side streets and alleys, and the testimony was that

it took him a while to catch up.

I think there was some testimony about the dip in the road

where he thought that [Nell] took that a little too fast.

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2 75 Pa.C.S.A. §§ 3802(a)(1), 3361, 3802(d)(1)(i), 3802(d)(1)(iii),

3802(d)(3), and 3802(b), respectively.

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As I see it, those are basically the facts upon which the

police officer testified or based his stop. I have no doubt that [the

officer] believed [Nell] was driving too fast. I suspect that [the

officer] did think he took it longer than it should have to catch up

to [Nell], but looking for specific facts that support the probable

cause stop, I do not find them present in this case, and I’m going

to grant your motion for suppression.

As I said, it’s an extremely close case. It is fact-specific. I

just don’t believe there were quite enough facts there to justify

the stop.

Certainly, no criticism of the police officer. I think he did

everything by the book. In my judgment, this is just not a case

where probable cause was present for the stop.

N.T., 2/15/2019, at 34-35. The court subsequently entered an order, granting

Nell’s motion, stating “the case lack[ed] probable cause.” Order, 2/15/2019.

The Commonwealth filed this timely appeal.3

Based on the nature of the Commonwealth’s claims, we address both

arguments together. First, the Commonwealth contends the suppression court

erred in finding the investigating officer was credible but lacked probable

cause to suspect Nell of violating Section 3361. See Appellant’s Brief, at 12.

The Commonwealth states:

[It] presented the testimony of Officer Henry, who testified that

[Nell] was traveling at a high rate of speed in excess of the posted

speed limits through various potential hazards late at night when

it was dark, including cresting a hill and crossing railroad tracks,

and swerved towards the oncoming traffic lane to avoid a hazard

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3 On June 10, 2019, the trial court ordered the Commonwealth to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The Commonwealth complied with the court’s directive. The court issued a

Pa.R.A.P. 1925(a) opinion on August 22, 2019.

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in the road. Given the conditions which existed at the time, Officer

Henry’s estimation that [Nell] was traveling at least 40 miles per

hour, based on his ten years of experience, is sufficient to

establish probable cause to suspect a violation of [Section] 3361.

Id., at 12.

The Commonwealth points to the following conditions, as testified to by

Officer Henry, which it claims constitute independent bases for the stop: (1)

Nell’s estimated high rate of speed through various roadways, a majority of

which were residential; (2) the vehicle crested a hill that was described as

“some hazard;” (3) there was the potential hazard of cross traffic at different

intersections; (4) the vehicle accelerated across train tracks and there was a

dip on the other side of the roadway which Nell “kind of” avoided by going into

the oncoming traffic lane; (5) it was 2:00 a.m.; and (6) there were pedestrians

out at that time but none were seen on the video. Id., at 13.

The Commonwealth also claims the suppression court erred by

characterizing Officer Henry’s testimony as a bald assertion that pedestrians

could have been out and about at that time in the morning. See id., at 14.

Furthermore, the Commonwealth asserts the court’s “unsupported claim that

‘the law recognizes that the pursuit of criminals is a highly competitive process

in which the reputations and egos of officers play a role’ was created out of

the whole cloth, and should have no bearing on the outcome of the instant

appeal.” Id., at 15-16.

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In its second argument, the Commonwealth contends the suppression

court’s legal conclusions do not flow from its factual findings because the court

found Officer Henry “credible.” Id., at 16. It states:

Despite the fact that the court erroneously omitted facts which

were proven, the facts found by the suppression court, combined

with the statement that court believed Officer Henry thought

[Nell] was driving too fast for the conditions existing at the time,

the logical conclusion to be drawn is that the officer possessed

probable cause to effectuate a traffic stop.

Id. at 18. The Commonwealth further alleges the court attempted “to walk

back [its previous] findings in open court of Officer Henry’s credibility in its

[Rule] 1925(a) opinion, qualifying such a finding through post hoc limitations

thereof, calling the statement an attempt[] at mollifying a disappointed officer

and an acknowledgement that the officer believed he possessed probable

cause.” Id., at 19 (reproduced record citation and internal quotation marks

omitted).4

As a prefatory matter, we begin with our well-settled standard of review:

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4 It merits mention that several times throughout its brief, the Commonwealth

references the Rule 1925(a) opinion as being crafted by or the product of the

suppression court’s chambers or law clerk. See i.e., Commonwealth’s Brief,

at 14 (“The suppression court’s clerk, after the fact, as well as the actual

court’s findings from the bench”), 15 (the “[Rule] 1925(a) Opinion crafted by

the Judge’s chambers”), 16 (“the lower court’s chambers invented a legal

concept”), and 19 (“The Court’s chambers’ attempts to walk back this finding

in its Rule 1925(a) Opinion”). We decline to delve into the Commonwealth’s

intention with these peculiar statements; nevertheless, we remind the

Commonwealth that the Honorable Michael E. Bortner presided over the

matter, including the suppression hearing, and his signature is attached to the

Rule 1925(a) opinion.

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When the Commonwealth appeals from a suppression order, we

follow a clearly defined standard of review and consider only the

evidence from the defendant’s witnesses together with the

evidence of the prosecution that, when read in the context of the

entire record, remains uncontradicted. The suppression court’s

findings of fact bind an appellate court if the record supports those

findings. The suppression court’s conclusions of law, however, are

not binding on an appellate court, whose duty is to determine if

the suppression court properly applied the law to the facts.

Our standard of review is restricted to establishing whether the

record supports the suppression court’s factual findings; however,

we maintain de novo review over the suppression court’s legal

conclusions.

Commonwealth v. Menichino, 154 A.3d 797, 800 (Pa. Super. 2017), appeal

denied, 169 A.3d 1053 (Pa. 2017) (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.

Bush, 166 A.3d 1278, 1282 (Pa. Super. 2017) (citation omitted).

An officer must possess probable cause to effectuate a traffic stop based

on a suspected violation of the Motor Vehicle Code. See Commonwealth v.

Salter, 121 A.3d 987, 993 (Pa. Super. 2015). Probable cause exists “when

the facts and circumstances within the police officer’s knowledge and of which

the officer has reasonably trustworthy information are sufficient in themselves

to warrant a person of reasonable caution in the belief that an offense has

been committed.” Id., at 996-997.

Here, Officer Henry’s reason for stopping Nell’s car was based on a

purported violation of Section 3361. Section 3361 provides:

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No person shall drive a vehicle at a speed greater than is

reasonable and prudent under the conditions and having regard

to the actual and potential hazards then existing, nor at a speed

greater than will permit the driver to bring his vehicle to a stop

within the assured clear distance ahead. Consistent with the

foregoing, every person shall drive at a safe and appropriate

speed when approaching and crossing an intersection or railroad

grade crossing, when approaching and going around a curve,

when approaching a hill crest, when traveling upon any narrow or

winding roadway and when special hazards exist with respect to

pedestrians or other traffic or by reason of weather or highway

conditions.

75 Pa.C.S.A. § 3361.

In disposing of the issue in the present matter, the suppression court

relied on this Court’s decision in Commonwealth v. Minnich, 874 A.2d 1234

(Pa. Super. 2005). In Minnich, a police officer initiated a traffic stop based

on an alleged Section 3361 violation after he observed the defendant take “a

sharp bend at a very high rate of speed on an icy roadway.” Id., at 1237. The

officer could not confirm whether there was other traffic on the road at the

time, but stated that there could have been an accident by the way the

defendant was hugging the shoulder. Based on the officer’s investigation, the

defendant was charged with the summary offense of driving while under

suspension for a prior conviction of driving under the influence of alcohol.

A district court found the defendant guilty of the suspended license

offense. The defendant subsequently appealed and filed a motion to suppress,

which the trial court denied, finding “the stop to be justified based on [the

officer]’s testimony showing a risk of causing an accident because [the

defendant] sped around a curve and, in so doing, did not have a clear view of

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what lay ahead.” Id. The trial court then upheld the district court’s decision,

finding the defendant guilty of the offense and sentencing him to 90 days’

incarceration.

In affirming the trial court’s decision, a panel of this Court analyzed

precedent concerning Section 3361 and opined:

In a ... case that addressed ... Section 3361, the Commonwealth

did not offer proof of actual or estimated speed, but a police officer

testified to observing the defendant-driver “traveling at an

extreme rate of speed.” Commonwealth v. Heberling, 451 Pa.

Super. 119, 678 A.2d 794 ([Pa. Super]. 1996). In response to a

claim that the evidence was insufficient to support the conviction,

the panel reiterated that the actual speed is irrelevant to a

Section 3361 inquiry. Rather, the focus is on the

surrounding circumstances, including “the amount of

traffic, pedestrian travel and weather conditions, ... the

nature of the roadway itself (e.g., whether four-lane,

interstate, or rural; flat and wide, or narrow and winding

over hilly terrain; smooth-surfaced, or full of potholes;

clear, or under construction with abrupt lane shifts.)” Id. at

796. Based on the police officer’s testimony that the defendant

was approaching an intersection and a hill crest at an extreme

rate of speed, we upheld the trial court’s judgment of sentence,

even though weather conditions were clear and normal and no

other traffic was affected nor were any pedestrians at risk. See

id. at 795, 797.

Similarly, in Commonwealth v. Johnson, 2004 PA Super

80, 846 A.2d 161 (Pa. Super. 2004), there was no evidence

presented of a precise speed. Nevertheless, we concluded that the

defendant operated his vehicle at an unsafe speed based on “the

evidence adduced at the scene of the accident, including the fact

that the victim was struck with great force” and that the road in

question was unlit and had a curved, ascending grade leading to

the crest of a hill. Id. at 165-66.

In Commonwealth v. Butler, 2004 PA Super 294, 856

A.2d 131 (Pa. Super. 2004), we determined that an officer did

have probable cause to stop a defendant’s vehicle for violating the

Vehicle Code based on the reasonable belief that the vehicle was

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being operated in a careless and erratic manner at a high rate of

speed, stating in part:

Butler was traveling down a populated street in the City of

Philadelphia at 1:00 in the morning in excess of the posted

speed limit, weaving in and out of traffic. Butler even

traversed onto the concrete median separating the

roadway. It took Sergeant Perry about six or seven blocks

to initially catch up with Butler’s vehicle after which Butler

made a right turn onto Reese Street. … The initial stop was

therefore justified.

Id. at 135.

***

In the case sub judice, ... [the defendant]’s single act of

“hugging the east part of the shoulder” of the road did not provide

a sufficient basis ... to stop him. 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, Section

3361. 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 [the defendant] was operating his

vehicle at an unsafe speed. Accordingly, we conclude that the stop

of [the defendant]’s vehicle was lawful, and the trial court properly

denied [his] motion to suppress.

Minnich, 874 A.2d at 1238-1239 (emphasis added).

Turning to the present matter, the suppression court granted Nell’s

motion based on the following:

The officer was passed by a vehicle and he estimated its

speed as excessive. We must note that Officer Henry was only

“pretty sure” that [Nell] was travelling at a high rate of speed. The

estimation of forty was suspect based upon the officer’s own

testimony. Nonetheless, we address the estimation. In

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Commonwealth v. McCandless, our Supreme Court determined

that an officer’s observations that a vehicle was moving faster

than others observed was, absent more, insufficient to form

probable cause for speeding. 648 A.2d 309, 311 (Pa. 1994). There

is a slight distinction in that, in McCandless, the officer, unlike

the officer in our case, could not even provide an estimation of the

defendant’s speed. This distinction appears meritless in light of

Commonwealth v. Whitmyer, which describes an insufficient

estimation of speed in light of it not having been made over the

proscribed distance. 668 A.2d 1113, 1117-1118 (Pa. 1995)

(superseded by statute, on other grounds, as recognized in, e.g.

Commonwealth v. Ulman, 902 A.2d 514, 518 (Pa. Super. Ct.

2006) (Noting that Whitmyer was decided before the reformation

of 75 Pa.C.S.A. § 6308(b) to include the lesser reasonable

suspicion standard)). This stated, we ask if there is anything

additional that can be added to Officer Henry’s estimation of

[Nell]’s speed as being forty in a twenty-five.

Combining the testimony of Officer Henry with the dashcam

video observed by this Court multiple times, we can state clearly

that Officer Henry was not able to observe [Nell]’s driving for

much of the pursuit as Officer Henry was taking a roundabout

drive in an attempt to get behind [Nell]’s vehicle. The officer

succeeded in doing so, but his circuitous journey through a maze

of alleyways, to include entering the wrong way in one of those

alleys, left him far behind [Nell]. This Court’s observation of the

video leaves it convinced that Officer Henry’s good instincts

regarding where [Nell] intended to drive to led the officer to end

up behind [Nell]’s vehicle but at a disadvantageous point. Simply

put, the officer’s circuitous journey through the alleyways gave

[Nell] sufficient time to end up far in advance of the officer once

the officer returned to the main roadways. No useful conclusions

regarding [Nell]’s speed could be garnered from this portion of the

video. We continue on with what can be observed in conjunction

with the officer’s testimony.

The officer noted that [Nell] swerved around some railroad

tracks and would have been in the oncoming lane whilst

negotiating an immediate blind turn. Of course, the officer was

unsure whether [Nell] was actually in the oncoming lane. The

video did not reveal, in any conclusive way, [Nell]’s vehicle

swerving. The officer asked this Court to believe that [Nell] was in

the opposing lane because the officer stated that he hit the dip

that [Nell] avoided. Of note, the officer testified that, Maple

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Avenue being undivided, he could not ascertain whether [Nell]

was weaving, which, to at least some extent, calls into question

his ability to discern [Nell] moving left to avoid the dip. To this,

we add, as is attendant to all pursuits in which an officer must

catch a suspect vehicle, the officer had to perceptibly speed in

order to narrow the gap. Our review of the video did not reveal

that any excessive speeding was necessitated on the part of the

officer beyond what is typical to close the gap created by the

officer having to maneuver into a pursuit position. Also included

in our calculus, the defense convincingly demonstrated through

cross-examination that [Nell] did not threaten any parked

vehicles. And by the officer’s own admission, no persons were

observed to have been imperiled by [Nell]’s driving. The officer

simply made a bald assertion that at 2:00 a.m. there could have

been persons out and about. The totality of the Commonwealth’s

presentation of evidence did not convince this Court that probable

cause existed. Each piece of evidence that might have added to

the totality of the circumstances was counterbalanced by some

fact militating against drawing the conclusion that the

Commonwealth asked this Court to make.

To the extent that this Commonwealth stands upon the

officer’s testimony, an officer’s recounting of a vehicle pursuit that

contains repeated assertions that the vehicle was travelling at a

high rate of speed does not settle the issue as to whether the

vehicle was actually travelling at a high rate of speed. To recycle

a familiar legal concept, the law recognizes that the pursuit of

criminals is a highly competitive process in which the reputations

and egos of officers play a role. It is for a reviewing court to divine,

as best as possible, whether the officer’s observations were

credible. For the foregoing reasons, we did not reach the same

conclusions as the officer. And this brings us to the

Commonwealth’s complaint that our decision stands in contrast to

our statements regarding, e.g. the officer doing things by the

books. We would respond that rarely is anyone totally credible or

incredible. Our attempts at mollifying a disappointed officer were

simply an acknowledgment that the officer believed he possessed

probable cause. This, of course, is not the standard. Were it,

suppression hearings would be reduced to rubber-stamping the

officer’s evaluation. The Commonwealth is shrewd to identify our

compliments to the officer as evidence of our supposed conclusion

that everything he recounted was credible. Nonetheless, while we

do not believe that the officer misrepresented anything, we

believe it is clear from the transcript that we did not believe the

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facts supported the officer’s conclusions vis-à-vis probable cause

to perform a traffic stop for speeding.

Suppression Court Opinion, 8/22/2019, at 7-11 (italics in original).

After careful review of the certified record, including the dashcam video,

we cannot find error in the suppression court’s disposition in this matter. We

recognize, as did the suppression court, that this is a close case based on a

unique set of circumstances. There is no dispute that Officer Henry was an

experienced law enforcement officer. His testimony, offered at the

suppression hearing, established that: (1) he was “pretty certain” Nell was

traveling at high rate of speed when they passed each other;5 (2) Officer

Henry made the decision to catch up to Nell’s vehicle by turning down a street

and then traveling by way of alleyways so he was not directly behind Nell for

several blocks and as a result, Nell was “pretty good distance” ahead for much

of the pursuit;6 (3) the officer observed Nell’s vehicle go up a “slight incline”

and then disappeared on the other side;7 (4) at one point, the officer observed

Nell’s vehicle approach a set of train tracks and veer to the left side of the

road, but “the road [was] not a divided roadway, so [the officer could not] be

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5 N.T., 2/15/2019, at 4.

6 Id., at 5.

7 Id.

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100 percent certain that it was the oncoming travel lane;” 8 and (5) the incident

took place in a residential area at 2:00 a.m. where traffic is limited, but there

are “pedestrians that [were] out at that time, although none are seen in the

video.”9

Furthermore, when asked about parking, Officer Henry stated:

On Stock Street there is -- before he got to Eichelberger

Street, there is parking on the right-hand side and left, which

would be his right and my left.

There’s parking on his right as he’s approaching. As he

crossed Eichelberger Street, there is parking in the first block but

on the right-hand side. The roadway at that point does become

divided by a yellow line. Although the roadway doesn’t shrink in

size, it becomes [a] bottle neck, and unfortunately, you can’t see

it on the [video] because the car is parked on the right and the

addition of two lanes it’s kind of a tight fit there.

N.T., 2/15/2019, at 17. However, on cross-examination, the officer

acknowledged that there were no parked cars on Stock Street on Nell’s side

of the lane, and there were no other cars in the video, so it was only in this

one block did the officer observe Nell pass parked cars. Id., at 18, 21-22.

Based on the totality of the circumstances, we agree with the

suppression court that Officer Henry did not articulate specific facts to

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8 Id., at 6.

9 Id., at 16.

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establish probable cause to effectuate a traffic stop wherein Nell was traveling

at a speed in violation of Section 3361.10

Moreover, the Commonwealth’s argument does not persuade us

otherwise. To the extent the Commonwealth focuses on the officer’s

estimation of Nell’s speed, we reiterate that the actual speed is irrelevant to

a Section 3361 inquiry, and that an officer’s observations that a vehicle was

moving faster than others observed is, without more, insufficient to form

probable cause for speeding. See Minnich, 874 A.2d at 1238, and

McCandless, 648 A.2d at 311. Due to the lack of specific, articulable, and

objective facts in the record demonstrating “the surrounding conditions” to

support the officer’s estimation, the Commonwealth has failed to establish

that Nell was driving at unsafe speed. Minnich, 874 A.2d at 1238.11

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10 Notably, while Officer Henry testified he purportedly observed Nell to have

been in the oncoming traffic lane as he veered to avoid a dip in the road, the

officer did not charge him with failing to drive on the right side of the road

under 75 Pa.C.S.A. § 3301(a). Likewise, he did not testify that he observed

Nell fail to stop at intersection with a stop sign pursuant to 75 Pa.C.S.A. §

3323.

11 It merits mention the Commonwealth relies on Heberling, supra, to

support its argument that Officer Henry possessed probable cause to stop Nell

based on the surrounding conditions. See Appellant’s Brief, at 15. We find

that Heberling is distinguishable from the present matter. In Heberling, the

officer observed the defendant approaching an intersection and a hill crest at

an extreme rate of speed. A panel of this Court upheld his conviction even

though the weather conditions were clear, no other traffic was affected, and

no pedestrians were at risk. Whereas, here, the officer was only “pretty sure”

that Nell was travelling at a high rate of speed, and there was a mere mention

of a slight incline.

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Furthermore, much of the Commonwealth’s argument asks us to look at

the evidence in a light most favorable to it. We reiterate that our standard of

review concerning the grant of a suppression motion is to “consider only the

evidence from the defendant’s witnesses together with the evidence of the

prosecution that, when read in the context of the entire record, remains

uncontradicted.” Menichino, 154 A.3d at 800. As our review of the facts

presented at the suppression hearing demonstrates, we have complied with

our standard, and because the record supports the suppression court’s

findings and legal conclusions, we will not disturb its ruling. See id.

Lastly, as to the Commonwealth’s second argument, it conflates a

credibility determination with a finding of probable cause, which are two

distinct determinations. While a court may find an officer was credible in his

investigation, that does necessarily not equate to a finding of probable cause.

Here, the court found that despite the officer’s credible observations, the

Commonwealth did not meet its burden in establishing that he possessed

____________________________________________

Likewise, Minnich, Johnson, and Butler are also distinct from the

matter at hand. In Minnich, the officer observed the defendant take a sharp

bend at a very high rate of speed on an icy roadway, and there was a lot of

dust and cinders blowing up from the vehicle’s path. In Johnson, while there

was no evidence of the exact speed, the defendant caused an accident which

caused the victim to be struck with great force, and there evidence that the

road was unlit and involved a curved hill. In Butler, the defendant was

traveling down populated streets in Philadelphia, weaving in and out of traffic,

and drove on the median. Here, on the other hand, the facts do not involve

conditions that were similar, such any icy roadway, an accident, or congested

streets.

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J-A11011-20

probable cause to stop Nell’s vehicle based on a Section 3361 violation.

Further, the Commonwealth misconstrues the court’s findings at the

suppression hearing and its statements in its Rule 1925(a) opinion. A review

of the transcript and opinion reveal that the court was not contradicting itself;

rather, in the opinion, the court was merely extrapolating on its findings at

the hearing. Therefore, we conclude the Commonwealth’s issues do not merit

relief. Accordingly, the court did not err in granting Nell’s motion to suppress.

Order affirmed.

President Judge Emeritus Stevens joins the memorandum.

Judge McLaughlin files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/15/2020

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