J-S50014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant

v.

VITALIJ KUPRIJ

No. 2100 MDA 2015

Appeal from the Order Entered November 2, 2015

in the Court of Common Pleas of Berks County Criminal Division

at No(s): CP-06-CR-0003110-2015

BEFORE: MUNDY, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2016

The Commonwealth appeals from the order entered in the Berks 

County Court of Common Pleas granting Appellee Vitalij Kuprij’s motion for 

suppression of evidence and motion for writ of habeas corpus. The 

Commonwealth contends that Appellee’s erratic driving created reasonable 

suspicion and/or probable cause to believe that he might be driving while 

under the influence. We affirm.

We glean the facts from the omnibus pretrial hearing. Trooper 

Thomas Moran testified for the Commonwealth. R.R. at 27a.1 On March 22, 

 

*

Former Justice specially assigned to the Superior Court.

1

For the parties’ convenience, we refer to the reproduced record where 

applicable.
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2015, at approximately 2:28 a.m., he was patrolling State Route 12 in Berks 

County. Id.

[The Commonwealth]: And did you notice anything that 

brings you to court today?

A: I observed a silver-colored Celica traveling westbound 

in front of me weaving in the lane of travel.

Q: When you say weaving - - -

A: It was traveling in the right lane. It was moving from 

right to left. It caught my eye. As I continued to follow 

the vehicle, the driver’s side tires crossed over to the left 

over the broken center line. And as we continued to travel 

further west past the exit for 183, the passenger side tires 

crossed over and touched the white fog line. And as we 

continued onto 222 South and it’s 422 west, he was in the 

center lane, and the vehicle moved from the─drifted to the 

left. The driver’s side tires crossed over into the left lane. 

And as it crossed over, it straddled the line. That is when 

he activated his turn signal. That is when I decided I 

had enough probable cause from the turn signal 

violation to initiate a traffic stop.

Q: Now, the vehicle you were driving in that evening, is it 

equipped with a camera?[2]

A: Yes, ma’am.

Q: And was the camera on and operable on that evening?

 

2 A video recording from the camera was attached to Appellant’s brief. See

Commonwealth’s Brief at App. C. We note that it was not in the certified 

record on appeal. “While this Court generally may only consider facts that 

have been duly certified in the record, where the accuracy of a document is 

undisputed and contained in the reproduced record, we may consider it.” 

Commonwealth v. Barnett, 121 A.3d 534, 545 n.3 (Pa. Super.) (citation 

omitted), appeal denied, 128 A.3d 1204 (Pa. 2015). Appellee does not 

dispute its accuracy. See Appellee’s Brief at 10. Therefore, we viewed the 

recording. See Barnett, 121 A.3d at 545 n.3.
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A: Yes, ma’am. There was an issue in the beginning of the 

video. You will see where the camera came off the mount 

off the windshield, and you will see in the beginning I’m 

putting it back on the window, back up on the windshield.

Q: Does it remain on your windshield the entire time?

A: When I put it in park for the traffic stop, it came off 

again. And at that point, because of officer’s safety, there 

were two people in the vehicle that I could see, I just left it 

hanging where it was.

Q: But does the camera capture the driver, which you had

observed?

A: Yes, ma’am.

Q: And did you provide a copy of that camera─footage to 

the Commonwealth?

A: Yes, ma’am.

 * * *

Q: Do you have any experience with the detection of 

impaired drivers?

A: Yes, ma’am.

Q: And when you observed the driving, you said 

there was also a turn signal violation?

A: Yes, ma’am. When he moved from the center lane to 

the left lane, he already started his movement. He 

already started a lane change when he tuned his left 

turn signal on for a brief moment, but he was 

already changing lanes, which is a violation of the 

Pennsylvania Vehicle Code.

Id. at 27a-28a (emphases added).

Counsel for Appellant cross-examined Trooper Moran. Id. at 28a.
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[Defense Counsel]: Trooper Moran, would you agree with 

me that the video that’s been presented to the Judge 

is the entirety of what you’re relying on your 

justification to stop this vehicle?

A: Yes.

 * * *

Q: . . . The turn that you’re talking about the─this is a 

lane change you’re talking about? 

A: Yes.

Q: The vehicle never turned off Route 12 when you were 

following it?

A: No.

Q: So we’re talking about a lane change?

A: Route 12 goes straight into 222. It turns into 222 

southbound, 422 westbound.

Q: The vehicle you were following never exited the 

roadway when you were following it?

A: No. 

 * * *

Q: You would agree with me, would you not, that the video 

segment you’re talking about when you are saying a bad 

lane turn takes place over two─approximately two seconds 

where the vehicle moves briefly in the direction it’s 

changing and puts their turn signal on?

A: Yes.

 * * *

Q: Trooper, you indicated you were on some kind of 

routine patrol that night. Isn’t it a fact that you were on a 

special detail looking for DUI’s, a DUI detail, weren’t you?
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A: Yes.

Q: And you would agree with me once the video falls off 

the mount shortly before the traffic stop that you did not 

observe any conduct that brings us here as the basis for 

your traffic stop, is that true?

A: After?

Q: After the video fell down?

A: No.

Q: So we can’t─we can’t assume there is anything else 

that you saw?

A: As far as why I made the traffic stop?

Q: Yes.

A: No.

Id. at 28a-29a. 

Appellee was charged with driving under the influence (“DUI”), general 

impairment incapable of driving safely,3 DUI, highest rate of alcohol,4

disregard traffic lane,5turning movements and required signals,6

and careless driving.7 Appellee filed an omnibus pretrial motion to suppress. 

Following a hearing, the motion was granted. The Commonwealth filed a 

 

3 75 Pa.C.S. § 3802(a)(1).

4 75 Pa.C.S. § 3802(c).

5 75 Pa.C.S. § 3309(1).

6 75 Pa.C.S. § 3334(a).

7 75 Pa.C.S. § 3714(a).
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notice of appeal to this Court, certifying that the ruling terminated or 

substantially handicapped the prosecution of this case.

8

 The Commonwealth 

filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal and 

the trial court filed a responsive opinion.9

The Commonwealth raises the following issues for our review:

A. Did Trooper Moran have reasonable suspicion and/or 

probable cause to believe that [Appellee] violated two 

separate provisions of the motor vehicle code?

B. Did the trial court err in granting the request for a writ 

of habeas corpus without permitting the Commonwealth to 

appeal from the adverse suppression ruling?

Commonwealth’s Brief at 4.

The Commonwealth contends that 

 

8

In Commonwealth v. Bender, 811 A.2d 1016 (Pa. Super. 2002), this 

Court noted

that the Commonwealth has an absolute right of appeal to 

the Superior Court to test the validity of a pre-trial 

suppression order. Such an appeal is proper as an appeal 

from a final order when the Commonwealth certifies in 

good faith that the suppression order terminates or 

substantially handicaps its prosecution. 

Id. at 1018 (quotation marks and citations omitted). Instantly, the 

Commonwealth has complied with this procedural requirement, and 

therefore the appeal is properly before us. See id.

9 We note that Appellee sent this Court a post submission communication 

containing a copy of Commonwealth v. Slattery, ___ A.3d ___, 2016 WL 

2848689 (Pa. Super. May 13, 2016). The Commonwealth objected, in a 

post submission communication, contending that the copy of the opinion 

constituted additional argument. We find no merit to this claim. 
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[b]ased upon this record, Trooper Moran had the requisite 

reasonable suspicion and/or probable cause to conduct the 

traffic stop. Primarily, Trooper Moran was on a roving DUI 

patrol when he noticed the Celica that [Appellee] was [sic] 

weaving within its lane. The vehicle then traveled over the 

center line, over the fog line, and again over the center 

line before the traffic stop was initiated. While this might 

not rise to the level of probable cause to believe that 

[Appellee] violated 75 Pa.C.S.A. § 3309(1),[10]. . . this 

erratic driving does create sufficient reasonable suspicion 

to believe that [Appellee] might be driving while under the 

influence. Thus[,] Trooper Moran possessed the requisite 

reasonable suspicion to conduct a further investigation for 

driving while under the influence of alcohol or a controlled 

substance.

In addition, Trooper Moran had the requisite probable 

cause to stop the Celica for the lane change violation. By 

its plain language, 75 Pa.C.S.A. §3334(a) and (b) require a 

vehicle to signal its intention to change lanes at least 100 

feet before actually changing lanes. However, Trooper 

Moran clearly saw [Appellee] in the Celica activate its turn 

signal after it started changing lanes by moving to the left 

and straddling the dashed white line, contrary to the 

requirements of the statute.

Commonwealth’s Brief at 11-12 (footnote and some citations omitted).

 

10 Section 3309(1) provides:

Whenever any roadway has been divided into two or more 

clearly marked lanes for traffic the following rules in 

addition to all others not inconsistent therewith shall 

apply:

(1) Driving within single lane.─A vehicle shall be driven 

as nearly as practicable entirely within a single lane and 

shall not be moved from the lane until the driver has first 

ascertained that the movement can be made with safety.

75 Pa.C.S. § 3309(1).
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Our review is governed by the following principles:

When reviewing an Order granting a motion to suppress 

we are required to determine whether the record supports 

the suppression court’s factual findings and whether the 

legal conclusions drawn by the suppression court from 

those findings are accurate. In conducting our review, we 

may only examine the evidence introduced by appellee 

along with any evidence introduced by the Commonwealth 

which remains uncontradicted. Our scope of review over 

the suppression court’s factual findings is limited in that if 

these findings are supported by the record we are bound 

by them. Our scope of review over the suppression court’s 

legal conclusions, however, is plenary.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012) 

(citation omitted).

The Motor Vehicle Code 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, 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. § 6308(b). Sections 3334(a) and (b) of the motor vehicle code 

provide:

(a) General rule.─Upon a roadway no person shall turn a 

vehicle or move from one traffic lane to another or enter 

the traffic stream from a parked position unless and until 

the movement can be made with reasonable safety nor 

without giving an appropriate signal in the manner 

provided in this section.
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(b) Signals on turning and starting.─At speeds of less 

than 35 miles per hour, an appropriate signal of intention 

to turn right or left shall be given continuously during not 

less than the last 100 feet traveled by the vehicle before 

turning. The signal shall be given during not less than the 

last 300 feet at speeds in excess of 35 miles per hour.

75 Pa.C.S. § 3334(a), (b).

In Slattery, this Court opined:

Instantly, we agree with both [the defendant] and the 

trial judge that [the trooper] did not have probable cause 

to stop the Durango on the basis that he believed [the 

defendant] had violated section 3334 of the vehicle code. 

Here, the trooper testified that he stopped [the 

defendant’s] Durango because he did not signal at least 

100 feet prior to changing lanes. . . . While section 

3334(a) provides that a person shall not move from a 

traffic lane to another or turn a vehicle without 

appropriately signaling of his or her attention to turn, if the 

given vehicle is travelling less than 35 m.p.h., the driver 

shall appropriately signal “continuously during not less 

than the last 100 feet traveled by the vehicle before 

turning.” 75 Pa.C.S. § 3334(b). Accordingly, the words 

of the statute are clear that the 100–foot rule 

applies to a vehicle turning, it is silent regarding the 

length that a signal must be activated prior to 

changing lanes. Moreover, the language found 

throughout the remaining subsections of 3334 is consistent 

with the interpretation that the term “before turning” 

means before a vehicle makes a turn onto another 

roadway, not before a person changes lanes. See id.

at § 3334(a) (“Upon a roadway no person shall turn a 

vehicle or move from one traffic lane to another . . . 

unless and until the movement can be made with 

reasonable safety nor without giving an appropriate signal 

in the manner provided in this section.”); id. at § 3334(d) 

(“Turn signals shall be discontinued immediately after

completing the turn or movement from one traffic lane to 

another traffic lane.”). See 1 Pa.C.S.A. § 1921(b) (when 

terms of statute are clear and unambiguous, they are 

given effect consistent with plain and common meaning).
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Slattery, ___ A.3d at ___, 2016 WL 2848689 at *2 (some emphases 

added).

Instantly, the trial court opined:

In review of the video evidence, [Appellee] did not do 

anything to give Trooper Moran probable cause for a 

vehicle stop. [Appellee] was not speeding, weaving, or 

braking erratically. [Appellee] actually used his turn signal 

indicators every time he changed lanes. . . . [Appellee] 

posed no safety hazard when his vehicle simply touched 

the white fog line. Therefore, at the time of the stop, 

Trooper Moran lacked specific articulable facts which would 

have provided reasonable suspicion to believe that 

[Appellee] was in violation of § 3309(1). Based on the 

totality of the circumstances, the [c]ourt finds that the 

Commonwealth has not met its burden in establishing 

sufficient reasonable suspicion for the vehicle stop.

 

Trial Ct. Op., 12/2/15, at 6.11 We agree no relief is due. 

In the case sub judice, Trooper Moran did not have reasonable 

suspicion and/or probable cause from the turn signal violation to initiate a 

traffic stop. See Slattery, ___ A.3d at ___, 2016 WL 2848689 at *2. The 

statute is silent as to the length of time that a signal must be activated prior 

to changing lanes. See id. We find no abuse of discretion or error of law by 

the trial court. See Gutierrez, 36 A.3d at 1107. Accordingly, we affirm the 

order of the trial court granting Appellee’s motion to suppress.12

 

11 We note that our review of the video corroborates the facts set forth by 

the trial court.

12 Given our resolution of this issue, we need not address the second issue 

raised on appeal.
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Order affirmed.

Judge Stabile joins the Memorandum.

Judge Mundy notes her dissent.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2016