J. S06038/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

EDWARD MARX, : No. 2693 EDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered August 1, 2019,

in the Court of Common Pleas of Carbon County

Criminal Division at No. CP-13-CR-0001641-2017

BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: April 9, 2020

Edward Marx appeals from the August 1, 2019 judgment of sentence of 

72 hours’ to 6 months’ imprisonment imposed after he was found guilty in a 

bench trial of driving under influence of alcohol or controlled substance (“DUI”) 

– Schedule I controlled substance.

1

 After careful review, we affirm the 

judgment of sentence.

The trial court2 summarized the relevant facts and procedural history of 

this case as follows:

On September 29, 2017, at approximately 

11:15 p.m., Lehighton Borough Police Officer 

Bruce Broyles was on routine patrol duty in a marked 

police vehicle and in full uniform near Bridge Street in

 

1 75 Pa.C.S.A. § 3802(d)(1)(i).

2 For the ease of our discussion, we collectively refer to the suppression court 

and the trial court as “trial court.”
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Lehighton Borough, Carbon County, Pennsylvania. At 

that time, Officer Broyles observed a silver 

Volkswagen sedan exit the Dunkin Donuts parking lot 

onto the Weissport [B]ridge with an inoperable 

passenger-side license plate lamp. The vehicle in 

question is equipped with two (2) license plate lamps. 

Officer Broyles did not observe any traffic violation 

other than the inoperable license plate lamp.

After the vehicle crossed the bridge, Officer Broyles 

initiated a traffic stop near the municipal park in 

Weissport Borough. Officer Broyles testified that 

because the subject vehicle had only one (1) operable 

license plate lamp, he was unable to confirm the plate 

until after the vehicle was stopped. Officer Broyles 

approached the vehicle and identified the driver as 

[appellant] by his driver’s license. While speaking 

with [appellant], Officer Broyles detected the odor of

marijuana emanating from inside [appellant’s] vehicle 

and observed that [appellant] had glassed over, 

bloodshot eyes. Officer Broyles also observed that the

vehicle’s certificate of inspection was expired.

Officer Broyles asked [appellant] to exit the vehicle to 

perform field sobriety tests. While Officer Broyles was 

talking with [appellant] outside of the vehicle, 

[appellant] admitted that he had smoked marijuana 

within the past two (2) hours. Officer Broyles had 

[appellant] perform the HGN[

3] test, the walk-andturn test, and the one-leg–stand test. Officer Broyles 

observed one (1) clue of impairment during the walkand-turn test and one (1) clue of impairment during 

the one-leg-stand test. Officer Broyles also had 

[appellant] perform the lack of convergence test and 

the modified Romberg balance test. [Appellant] 

displayed a lack of convergence. During the balance 

test, [appellant] inaccurately estimated the passage 

of thirty (30) seconds in a period of twenty-three (23) 

seconds, which is outside the acceptable range.

Once [appellant] had completed the tests, he 

consented to a search of his vehicle by Officer Broyles. 

 

3 Horizontal Gaze Nystagmus.
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Officer Broyles instructed [appellant] to turn the 

vehicle’s lights on to confirm that the passenger-side 

license plate lamp was inoperable. Once the lights

were activated, Officer Broyles confirmed that the 

license plate lamp was inoperable. Officer Broyles 

then placed [appellant] under arrest for DUI and 

secured him in the patrol vehicle. [Appellant] 

consented to a blood draw and Officer Broyles 

transported [appellant] to Gnaden Huetten Memorial 

Hospital. [Appellant’s] blood was drawn by a

phlebotomist at Gnaden Huetten Memorial Hospital 

and sent for testing at NMS laboratory.

On February 16, 2018, [appellant] filed an omnibus

pre-trial motion including motions to compel

discovery, to suppress evidence based on an illegal 

stop, to suppress evidence based upon coerced 

consent to a search and seizure, and for a writ of 

habeas corpus. On March 16, 2018, th[e trial] court

approved a stipulation between the parties in which 

[appellant] withdrew each of the aforesaid claims, 

except the motion to suppress evidence based on an 

illegal stop. Pursuant to the stipulation, the parties 

agreed to submit, in lieu of testimony on the 

suppression motion, the transcript from the 

preliminary hearing held on December 20, 2017, and 

the footage of the incident from the mobile video 

recorder [(“MVR”)] mounted in Officer Broyles’ patrol 

vehicle. On July 24, 2018, upon consideration of the 

transcript, the video [from the MVR], [appellant’s]

brief filed on April 4, 2018, and the Commonwealth’s 

brief filed on April 13, 2018, th[e trial] court entered 

an order with findings of fact and conclusion of law 

denying [appellant’s] omnibus pre-trial motion. 

Trial court Rule 1925(a) opinion, 10/22/19 at 1-4 (extraneous capitalization 

and quotation marks omitted; emphasis added).

Appellant was charged with multiple counts of DUI and various Motor 

Vehicle Code (“MVC”) violations. Immediately prior to the commencement of 

trial, the Commonwealth withdrew all of the charges except one count of DUI 
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– Schedule I controlled substance. On April 9, 2019, appellant waived his 

right to a jury and proceeded to a bench trial before the Honorable Steven R. 

Serfass. Following a one-day trial, the trial court found appellant guilty of DUI 

– Schedule I controlled substance. Thereafter, on August 1, 2019, the trial 

court sentenced appellant to 72 hours’ to 6 months’ imprisonment. This timely 

appeal followed.4

Appellant raises the following issues for our review:

1. Whether the [t]rial [c]ourt’s factual finding that 

Officer Broyles could not confirm [a]ppellant’s 

license plate until after Officer Broyles 

completed the traffic stop is supported by the 

record since the dashcam video from 

Officer Broyles’ police vehicle contradicts his 

testimony and demonstrates that [a]ppellant’s 

license plate was illuminated and readable prior 

to the initiation of a traffic stop?

2. Whether Officer Broyles conducted a legal traffic 

stop of [a]ppellant’s vehicle when the dashcam 

footage shows that [a]ppellant’s license plate

was illuminated and readable prior to the 

initiation of the traffic stop?

Appellant’s brief at 4.

Our standard of review when addressing a challenge to a trial court’s 

denial of a suppression motion is well settled.

[An appellate court’s] standard of review in 

addressing a challenge to the denial of a suppression 

 

4 On September 13, 2019, the trial court ordered appellant to file a concise 

statement of errors complained of on appeal, in accordance with 

Pa.R.A.P. 1925(b). Appellant complied with the trial court’s order and filed 

his timely Rule 1925(b) statement on September 19, 2019. The trial court 

filed its Rule 1925(a) opinion on October 22, 2019.
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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, [the appellate court is] bound by [those] 

findings and may reverse only if the court’s legal 

conclusions are erroneous. 

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation 

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

“Both the Fourth Amendment of the United States Constitution and 

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals 

freedom from unreasonable searches and seizures.” Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation 

marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). “To secure the 

right of citizens to be free from such intrusions, courts in Pennsylvania require 

law enforcement officers to demonstrate ascending levels of suspicion to 

justify their interactions with citizens to the extent those interactions 

compromise individual liberty.” Commonwealth v. Reppert, 814 A.2d 1196, 

1201 (Pa.Super. 2002) (citation omitted).

It is well established that:

A police officer has the authority to stop a vehicle 

when he or she has reasonable suspicion that a 

violation of the vehicle code has taken place, for the 

purpose of obtaining necessary information to enforce 
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the provisions of the code. 75 Pa.C.S.[A.] § 6308(b). 

However, if the violation is such that it requires no 

additional investigation, the officer must have 

probable cause to initiate the stop.

Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa.Super. 2013) (citation 

omitted), appeal denied, 79 A.3d 1096 (Pa. 2013).

Our supreme court has defined probable cause as follows:

Probable cause is made out when the facts and 

circumstances which are within the knowledge of the 

officer at the time of the stop, and of which he has 

reasonably trustworthy information, are sufficient to 

warrant a man of reasonable caution in the belief that 

the suspect has committed or is committing a crime. 

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

was correct or more likely true than false. Rather, we 

require only a probability, and not a prima facie

showing, of criminal activity. In determining whether 

probable cause exists, we apply a totality of the 

circumstances test.

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

omitted), cert. denied, U.S. , 136 S.Ct. 201 (2015).

The crux of appellant’s first claim is that Officer Broyles’ traffic stop was 

unlawful because “[t]he trial court’s factual finding that . . . Officer Broyles 

could not read [appellant’s] license plate without initiating a traffic stop” is not 

supported by the record. (Appellant’s brief at 10.) In support of this 

contention, appellant avers that the dashcam footage from the vehicle’s MVR

demonstrates that “[appellant’s] license plate was fully illuminated at all 

times.” (Id. at 8, 13; see also Exhibits D-F (still MVR images) and G (CD of 

dashcam MVR).) We disagree. 
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Our review of the record supports the trial court’s determination that 

Officer Broyles articulated sufficient facts to justify his stop of appellant’s 

vehicle for a violation of the MVC. “Pennsylvania law makes clear that a police 

officer has probable cause to stop a motor vehicle if the officer observes a 

traffic code violation, even it if is a minor offense.” Commonwealth v. 

Calabrese, 184 A.3d 164, 167 (Pa.Super. 2018) (citation omitted). Here, 

appellant’s vehicle was stopped for an inoperable license plate lamp, in 

violation of 75 Pa.C.S.A § 4303(b), which provides as follows:

(b) Rear lighting.--Every vehicle operated on a 

highway shall be equipped with a rear lighting 

system including, but not limited to, rear lamps, 

rear reflectors, stop lamps and license plate 

light, in conformance with regulations of the 

department. If a vehicle is equipped with a 

centrally mounted rear stop light, a decal or 

overlay may be affixed to the centrally mounted 

rear stop light if the decal or overlay meets all 

applicable State and Federal regulations.

75 Pa.C.S.A. § 4303(b).

Officer Broyles testified that at approximately 11:15 p.m. on the evening 

of September 19, 2017, he effectuated a traffic stop of appellant’s vehicle 

after observing that one of the vehicle’s two license plate lamps – specifically, 

the “passenger-side registration lamp” – was inoperable and that the 

remaining lamp failed to fully illuminate appellant’s license plate. (Notes of 

testimony, 12/20/17 at 6, 17.) On cross-examination, Officer Broyles 

disagreed with defense counsel’s characterization that the license plate was 

“illuminated” and reiterated that he “was not able to confirm the registration 
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plate until after [appellant’s] vehicle was stopped.” (Id. at 17.) As 

recognized by the Commonwealth, the MVR in Officer Broyles’ vehicle and the 

still images set forth in appellant’s brief supports these conclusions. The still 

MVR images of appellant’s license plate depicted in Exhibits D and E clearly do 

not show a legible registration number. (See appellant’s brief at Exhibits D, 

E.) The MVR (Exhibit G) demonstrates that the still MVR image of appellant’s 

license plate depicted in Exhibit F was not taken until after Officer Broyles had 

activated his overhead lights and initiated a traffic stop of appellant’s vehicle 

and, in any event, shows only a partially legible registration number. (Id. at 

Exhibits G, F; see also Commonwealth’s brief at 6.) Based on the forgoing, 

we find that the record supports the trial court’s factual findings, and 

appellant’s first claim of trial court error must fail.

Appellant next takes issue with the trial court’s legal conclusion that

Officer Broyles had probable cause to stop appellant’s vehicle for one 

inoperable registration plate light where the vehicle’s remaining registration 

plate light was illuminated and operable. (Appellant’s brief at 14.) In support 

of this contention, appellant argues that the trial court’s conclusion is contrary 

to this court’s decision in Commonwealth v. Banks, 145 A.3d 794 

(Pa.Super. 2016) (unpublished memorandum) (affirming an order granting 

appellee’s suppression motion on the basis of the suppression court’s opinion, 

which concluded that the police lacked probable cause to effectuate a traffic 
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stop where one of the vehicle’s two registration lamps was inoperable), 

appeal denied, 166 A.3d 1225 (Pa. 2017). (Appellant’s brief at 16-18.)

Preliminarily, we recognize that Banks is a non-precedential decision 

and is not binding on this court. In any event, Banks is clearly distinguishable 

from the instant matter. Relying on the trial court’s opinion, the Banks court 

noted that “[n]owhere in [the police officer’s] testimony before [the trial court]

or in the Affidavit of Probable Cause do we find any indication that the officers 

were unable to view the Appellee’s license plate.” Banks, 145 A.3d 794 

(unpublished memorandum at *4, quoting trial court opinion, 8/20/15.) 

However, in the case sub judice, there was testimony by Officer Broyles that 

the remaining license plate lamp on appellant’s vehicle did not properly 

illuminate his license plate. (Notes of testimony, 12/20/17 at 17.)

We find that our holding in Commonwealth v. Salter, 121 A.3d 987 

(Pa.Super. 2015), is dispositive of this issue. In Salter, a panel of this court 

reversed the suppression court’s determination that the police lacked probable 

cause to stop the defendant’s vehicle for a violation of the MVC where the 

vehicle’s license plate was not illuminated. Id. at 993-994. In reaching this 

conclusion, the Salter court explained:

Section 4303 of the Vehicle Code states that “[e]very 

vehicle operated on a highway shall be equipped with 

a rear lighting system including, but not limited to, 

rear lamps, rear reflectors, stop lamps and license 

plate light, in conformance with regulations of the 

department.” 75 Pa.C.S.A. § 4303(b). Department 

regulations at 67 Pa.Code §§ 175.80(a)(9)(i) and 

175.66(k) provide a vehicle is not in compliance 
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with the [MVC] if “[a]n exterior bulb or sealed 

beam, if originally equipped or installed, fails to 

light properly,” and “the registration plate lamp 

shall emit white light and make the registration plate 

visible from [a] distance of 50 feet to the rear of the 

vehicle.”

Salter, 121 A.3d at 993 (emphasis added). 

As discussed, Officer Broyles testified that he observed that one of the 

two license plate lamps on appellant’s vehicle was not illuminated, to the 

extent that he could not fully confirm the registration number, and effectuated 

a traffic stop on this basis. (Notes of testimony, 12/20/17 at 17.) Contrary 

to appellant’s contention, the fact that one of the license plate lamps on his 

vehicle remained operational does not negate the requirement of 

Section 4303(b) and the department regulations referenced therein that a 

light “originally equipped or installed” on a motor vehicle must be in full 

working order. See 67 Pa.Code §§ 175.66(k) and 175.80(a)(9)(i); see also 

Commonwealth v. Muhammed, 992 A.2d 897, 902-903 (Pa.Super. 2010) 

(upholding legality of traffic stop for violation of Section 4303 of the MVC 

where a vehicle’s “originally equipped or installed” exterior center-mounted 

brake light was inoperable, even though this light was optional and not 

specifically required under the MVC and the vehicle’s left and right brake lights 

were operating properly). Based on the foregoing, we find that the trial court’s 

legal conclusion that Officer Broyles possessed the requisite probable cause to 

stop appellant’s vehicle for one inoperable registration plate light was not in 

error and that appellant’s second claim must fail. 
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Accordingly, we discern no error on the part of the suppression court in 

denying appellant’s motion to suppress.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/20