J-A08025-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANDREW DAVID SIKORA, JR.

Appellant No. 1532 EDA 2015

Appeal from the Judgment of Sentence April 24, 2015

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0003780-2014

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY BOWES, J.: FILED AUGUST 22, 2016

I agree with my distinguished colleagues that the trial court incorrectly 

applied the reasonable suspicion standard to assess the validity of the traffic 

stop. However, I believe that the officer possessed probable cause to stop 

Appellant for driving at an unsafe speed. Since all issues on appeal relate to 

the validity of the traffic stop, I would therefore affirm judgment of 

sentence.

I respectfully disagree with my colleague’s recitation of the facts. The 

trial court’s opinion states, “Officer Fusco heard the car’s engine rev. Officer 

Fusco looked in his side view mirror and saw the car’s taillights travelling 

away from him at a high rate of speed.” Trial Court Opinion, 7/23/15, at 6. 

Compare these findings to the majority’s memorandum, which states: 
J-A08025-16

- 2 -

Officer Fusco did not testify as to what effect Appellant’s surging 

of the engine had on the speed of the vehicle he was driving. 

At the suppression hearing Officer Fusco only testified to hearing 

the engine surge and seeing Appellant’s taillights pulling away, 

and without any support, he made the conclusory statement that 

Appellant was traveling away from him at a high rate of speed. 

N.T., 3/10/15, at 9. Officer Fusco saw Appellant’s taillights in his 

side mirror. Officer Fusco merely caught a brief glimpse of the 

taillights proceeding in the opposite direction. Thus, Appellant’s 

surging of the engine was insufficient to give Officer Fusco 

probable cause.

Majority’s memorandum at 8 (emphasis in original, footnote omitted). This 

factual recitation is contradicted by the record. Officer Fusco stated he saw 

the vehicle “go in the opposite direction at a high rate of speed.” N.T. 

Suppression, 3/20/15, at 9. Therefore, the officer did in fact know what 

happened when Appellant revved the engine: the vehicle suddenly 

accelerated and reached a high rate of speed. The trial court credited the 

officer’s testimony in its opinion, and, since that finding is clearly supported 

by the record, we are bound by it.

The majority disagrees with this finding by stating Officer Fusco’s 

testimony is conclusory and lacks support. By way of contradiction, the 

majority notes that the only evidence of record to establish the vehicle’s 

speed came from Appellant’s expert. The trial court found that the Corvette 

accelerated to fourteen mph, but only up to the point “when it went out of 

view on the MVR video just prior to the acceleration (rev’ing) being heard.” 

Trial Court Opinion, 7/23/15, at 7 (citing N.T. Suppression, 3/20/15, at 62). 

This finding was based on the expert’s opinion that Appellant accelerated 
J-A08025-16

- 3 -

from six mph to fourteen mph as he passed the officer’s vehicle. N.T. 

Suppression, 3/20/15, at 62. That finding obviously says nothing about 

what speed Appellant reached after passing the officer’s vehicle, which is 

when the engine surge occurred. Indeed, the expert conceded that he did 

not know how fast Appellant went as a result of that acceleration. Id. at 61-

62. Moreover, the expert based his conclusions on normal, not rapid, 

acceleration.1 Id. at 64. 

Thus, the expert’s finding says nothing about what speed Appellant 

reached upon revving the engine and suddenly accelerating. Therefore, the 

testimony of the police officer, which the trial court credited, establishes that 

Appellant proceeded at a high rate of speed. 

“Where the record supports the factual findings of the trial court, the 

appellate court is bound by those facts and may reverse only if the legal 

conclusions drawn therefrom are in error.” Commonwealth v. Tam Thanh 

Nguyen, 116 A.3d 657, 663-64 (Pa.Super. 2015) (citations omitted). 

Clearly, the majority cannot discredit the officer’s testimony. Therefore, this 

finding must be accepted. I take the majority’s position to be that the 

officer’s observation of the high rate of speed cannot establish probable 

____________________________________________

1

 The vehicle in question was a Corvette; the record does not indicate year 

or model, and the report makes no mention of examining the actual engine 

in question. I do not think it is controversial to state that a Corvette, as a 

sports car, is generally capable of rapid acceleration. 
J-A08025-16

- 4 -

cause. The majority’s criticism is more properly directed to whether Officer 

Fusco’s observation would be sufficient for purposes of proving the violation 

beyond a reasonable doubt. However, we are not answering that question. 

“[Probable cause] is not the same ‘beyond-a-reasonable-doubt’ standard 

which we apply in determining guilt or innocence at trial.” Commonwealth 

v. Evans, 661 A.2d 881, 885 (Pa.Super. 1995) (quoting Commonwealth v. 

Simmons, 440 A.2d 1228, 1234 (Pa.Super. 1982)). Officer Fusco’s 

testimony, as credited by the fact-finder, is sufficient to establish Appellant 

accelerated to a high rate of speed for purposes of probable cause. 2

Analyzing the legal inquiry in light of the facts as found by the trial 

court, I would hold that probable cause existed to warrant a traffic stop for 

driving at an unsafe speed. The statute reads:

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 

____________________________________________

2

 I believe the majority places too much emphasis on the officer’s inability 

to accurately estimate the speed Appellant reached after the engine surge. 

In my view, the officer had probable cause, at minimum, to stop the vehicle 

and issue a written warning based on the observed conduct. “And, as noted 

by the trial court, an officer need not stop a vehicle only where he or she 

intends to issue a citation, but can effectuate a stop solely for purposes of 

issuing the driver a warning.” Commonwealth v. Benton, 655 A.2d 1030, 

1033 (Pa.Super. 1995) (citing Commonwealth v. Fisher, 440 A.2d 570, 

572 (Pa.Super. 1982)). 
J-A08025-16

- 5 -

grade crossing, when approaching and going around 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. § 3361. 

“Probable cause exists where the facts and circumstances within the 

officers’ knowledge are sufficient to warrant a person of reasonable caution 

in the belief that an offense has been or is being committed.” 

Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (citation omitted). 

Whether the facts and circumstances amount to probable cause is a question 

of law. Commonwealth v. Newman, 84 A.3d 1072, 1080 (Pa.Super. 

2014). In making this determination, we consider 

all the factors and their total effect, and do not concentrate on 

each individual element. . . . We also focus on the 

circumstances as seen through the eyes of the trained officer, 

and do not view the situation as an average citizen might. . . . 

Finally, we must remember that in dealing with questions of 

probable cause, we are not dealing with certainties. We are 

dealing with the factual and practical considerations of everyday 

life on which reasonable and prudent men act. l. 

Evans, supra at 884-85 (Pa.Super. 1995) (citations omitted).

We set forth in Commonwealth v. Heberling, 678 A.2d 794 

(Pa.Super. 1996), that the statute in question embodies two general and 

alternate types of conduct that constitute a violation: (1) driving at a speed 

greater than is reasonable and prudent under the conditions and having 

regard to the actual and potential hazards then existing; or (2) driving at a 
J-A08025-16

- 6 -

speed greater than will permit the driver to bring the vehicle to a stop within 

the assured clear distance ahead. Id. at 795. The second category does 

not apply to these facts. It is also clear that Appellant was not approaching 

an intersection or railroad grade crossing, a curve, hill crest, nor was he on a 

narrow or winding roadway. However, the language “when special hazards 

exist with respect to pedestrians” is part of a catchall category. Id. 

Herein, I would find Appellant’s high rate of speed was neither 

reasonable nor prudent due to a special hazard existing with respect to 

pedestrians. Officer Fusco testified that this incident occurred at 

approximately 2:00 a.m. when businesses in the area were closing and 

patrons were exiting. Officer Fusco observed several pedestrians in the 

immediate area. N.T. Suppression, 3/20/15, at 39-40. Officer Fusco 

testified it was not uncommon for pedestrians to be visibly intoxicated and 

walking in this area at this time of night. Id. at 8. 

In my view, that Appellant was traveling at a slow pace when he 

passed Officer Fusco’s vehicle supports the conclusion that Appellant’s 

driving was unsafe for the conditions. Jaywalking pedestrians seeking to 

cross a street rely on an assumption that approaching vehicles will not 

suddenly accelerate. Rapid acceleration, as opposed to a gradual build-up of 

speed, presents far more danger to a pedestrian seeking to cross the street, 

especially when many of those pedestrians are likely to be impaired and not 

in full control of their movements. In this regard, Appellant cites 
J-A08025-16

- 7 -

Commonwealth v. Perry, 982 A.2d 1009, 1012 (Pa.Super. 2009), for the 

proposition that a driver has no duty to yield to a pedestrian on a sidewalk. 

Therein, the trial court specifically found that a driver failed to yield to a 

pedestrian. Perry simply stated that this particular finding was not 

supported since the record indicated the pedestrian was on the sidewalk, not 

the crosswalk. Id. This does not mean that a court, in assessing whether a 

hazard existed, cannot consider the presence of pedestrians. Such a reading 

is flatly contradicted by the plain text of the statute. 

Bearing in mind that we are reviewing only whether probable cause 

justified the stop, I would hold that, under these facts, the officer possessed 

probable cause to believe that Appellant’s sudden acceleration to a high rate 

of speed in the presence of the pedestrians constituted a violation of the 

Vehicle Code. While the trial court applied the incorrect standard of 

reasonable suspicion, we may affirm on any basis. Commonwealth v. 

Moser, 999 A.2d 602, 606, n.5 (Pa.Super. 2010). I would therefore affirm 

the judgment of sentence.