J-A30026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

DANIEL KEITH MOYER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 805 MDA 2019

Appeal from the Order Dated April 16, 2019

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0000866-2018

BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 18, 2020

The Commonwealth appeals from the order granting Appellee Daniel 

Keith Moyer’s suppression motion.

1

 The Commonwealth asserts that the trial

court erred when it suppressed evidence, including a gun and drug 

paraphernalia, obtained after the stop of a vehicle operated by Appellee. We 

affirm.

The trial court set forth the following findings of fact regarding the 

underlying vehicle stop: 

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* Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth certified that the trial court’s suppression order 

terminated or substantially handicapped the prosecution of this matter at the 

time it filed its notice of appeal from this interlocutory order. See Notice of 

Appeal, 5/20/19; Pa.R.A.P. 311(d).
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1. On November 5, 2017, at approximately 1:30 a.m., Chief 

Steven Stinsky of the Fleetwood Police Department was on patrol 

in a marked patrol vehicle.

2. Chief Stinsky has been a police officer for more than thirty years 

and formerly worked for the Pennsylvania State Police.

3. Chief Stinsky was driving east on Arch Street and was 

approaching Franklin Street.

4. Chief Stinsky credibly testified that a vehicle was traveling 

toward him in the opposite lane of travel.

5. The vehicle made a right turn onto Franklin Street which Chief 

Stinsky described as slow and wide.

6. Because of the wide turn, the vehicle was in the lane of 

oncoming traffic for less than five seconds before it returned to 

the correct lane.

7. There was no oncoming traffic at the time the vehicle crossed 

into the wrong lane.

8. Franklin Street is not perpendicular to Arch Street.

9. When making a right turn from Arch Street onto Franklin Street, 

the angle is less than ninety degrees.

10. Chief Stinsky followed the vehicle on Franklin Street for 

approximately one thousand four hundred feet.

11. During that time, Chief Stinsky testified that the vehicle was 

weaving in its lane and traveling at odd rates of speed.

12. The vehicle was not speeding.

13. The vehicle then turned into the parking lot of the Fleetwood 

Bible Church.

14. The vehicle pulled into the lot before Chief Stinsky activated 

his emergency lights.

15. Chief Stinsky credibly testified that he pulled into the lot and 

activated his lights because he thought that there was possibly an 

issue with the driver.

Trial Ct. Order, 4/16/19, at 3-4. 
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After approaching Appellee’s vehicle, Chief Stinsky observed that 

Appellee was the driver and only occupant of the vehicle. Additionally, Chief 

Stinsky noticed Appellee’s eyes were bloodshot and watery and his face was 

flushed. During the ensuing investigation, Chief Stinsky obtained information 

that Appellee had outstanding warrants for traffic violations and removed 

Appellee from the vehicle. A search revealed the presence of a 9mm pistol 

and a small ziplock bag of methamphetamine inside the vehicle. 

On November 6, 2017, Appellee was charged with receiving stolen 

property, firearms not to be carried without a license, possession of a 

controlled substance, driving under the influence of alcohol, and related 

offenses.2 Appellee filed a motion to suppress evidence challenging the 

grounds for the traffic stop. See Omnibus Mot., 7/24/18, at 3. The trial court 

conducted a suppression hearing on February 8, 2019. At the conclusion of 

the hearing, the Commonwealth argued that a reasonable suspicion standard 

should apply.3 N.T., 2/8/19, at 17.

On April 16, 2019, the trial court granted Appellee’s motion to suppress. 

The trial court determined that “a wide turn onto a street that is less than 

perpendicular coupled with weaving within a lane over a distance of one 

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2 18 Pa.C.S. §§ 3925(a), 6106(a)(1); 35 P.S. § 780-113(a)(16); and 75 

Pa.C.S. § 3802(a)(2), respectively.

3

 The Commonwealth did not argue probable cause. See N.T., 2/8/19, at 17. 
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thousand four hundred feet while driving within the speed limit does not 

amount to reasonable suspicion to conduct a traffic stop.” Order at 6. 

The Commonwealth timely filed this appeal and a court-ordered 

Pa.R.A.P. 1925(b) statement. The trial court filed a responsive Rule 1925(a) 

opinion.4 

The Commonwealth raises a single issue for our review:

Did Chief Stinsky have reasonable suspicion and/or probable 

cause to believe that [Appellee] violated a provision of the motor 

vehicle code?

Commonwealth’s Brief at 4.

In its brief,5the Commonwealth asserts that it established that Chief 

Stinsky had reasonable suspicion to stop Appellee for a suspected DUI

pursuant to 75 Pa.C.S. § 6308(b). Id. at 12. Alternatively, the 

Commonwealth argues that Chief Stinsky had probable cause to stop Appellee

for a violation of 75 Pa.C.S. § 3309 (driving on roadways laned for traffic). 

Id. at 14. We address each argument below. 

Initially, we summarize the principles governing our review. In 

reviewing the grant of a motion to suppress,

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4

Initially, the trial court did not consider whether probable cause existed to 

stop Appellee for a traffic offense. See Order at 5. However, the trial court 

responded to the Commonwealth’s Rule 1925(b) statement claiming, in part,

that probable cause existed to stop Appellee. See Commonwealth’s Rule 

1925(b) Statement; Trial Ct. Op. at 2-4. 

5 Appellee did not submit a brief.
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we must determine whether the record supports the trial court’s 

factual findings and whether the legal conclusions drawn from 

those facts are correct. We may only consider evidence presented 

at the suppression hearing. In addition, because [Appellee] 

prevailed on this issue before the suppression court, we consider 

only the [Appellee’s] evidence and so much of the 

Commonwealth’s evidence as remains uncontradicted when read 

in the context of the record as a whole. We may reverse only if 

the legal conclusions drawn from the facts are in error.

Commonwealth v. Hemingway, 192 A.3d 126, 129 (Pa. Super. 2018) 

(citation omitted).

The Motor Vehicle Code provides that

[w]henever a police officer . . . 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 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). This Court has explained that, 

[t]raffic stops based on a reasonable suspicion: either of criminal 

activity or a violation of the Motor Vehicle Code under the 

authority of Section 6308(b) must serve a stated investigatory 

purpose. In effect, the language of Section 6308(b)—to secure 

such other information as the officer may reasonably believe to be 

necessary to enforce the provisions of this title—is conceptually 

equivalent with the underlying purpose of a Terry [v. Ohio, 392 

U.S. 1 (1968)] stop. 

Mere reasonable suspicion will not justify a vehicle stop when the 

driver’s detention cannot serve an investigatory purpose relevant 

to the suspected violation. In such an instance, it is [i]ncumbent 

upon the officer to articulate specific facts possessed by him, at 

the time of the questioned stop, which would provide probable 

cause to believe that the vehicle or the driver was in violation of 

some provision of the Code.
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Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc) 

(citations and internal quotation marks omitted).

Accordingly, when considering whether reasonable suspicion or 

probable cause is required constitutionally to make a vehicle stop, 

the nature of the violation has to be considered. If it is not 

necessary to stop the vehicle to establish that a violation of the 

Vehicle Code has occurred, an officer must possess probable cause 

to stop the vehicle. Where a violation is suspected, but a stop is 

necessary to further investigate whether a violation has occurred, 

an officer need only possess reasonable suspicion for the stop. 

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015). Under 

either standard, “the burden is on the Commonwealth to establish by a 

preponderance of the evidence that the challenged evidence is admissible.” 

Id. at 996 (citation and internal quotation marks omitted). 

The Commonwealth first argues that Chief Stinsky’s observations of 

Appellee’s vehicle provided the reasonable suspicion required to support a 

traffic stop to investigate. Commonwealth’s Brief at 13. The Commonwealth 

emphasizes that Chief Stinsky initially observed Appellee making the slow and 

wide turn onto Franklin Street during which his vehicle crossed the double 

yellow line. Id. at 12. The Commonwealth notes that Chief Stinsky then 

followed Appellee for approximately 1,400 feet on Franklin Street and 

observed that “[t]he speed of the vehicle varied—it would speed up and slow 

down intermittently—and the vehicle weaved within its lane.” Id.

When assessing whether reasonable suspicion existed to stop a vehicle 

and conduct an investigation, 
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we must accord due weight to the specific reasonable inferences 

that he is entitled to draw from the facts in light of his experience. 

Reasonable suspicion requires an evaluation of the totality of the 

circumstances.

Reasonable suspicion is a less stringent standard than the 

probable cause necessary to effectuate a warrantless arrest, 

and depends on the information possessed by police and its 

degree of reliability in the totality of the circumstances. In 

order to justify the seizure, a police officer must be able to 

point to specific and articulable facts leading him to suspect 

criminal activity is afoot. In assessing the totality of the 

circumstances, courts must also afford due weight to the 

specific, reasonable inferences drawn from the facts in light 

of the officer's experience, and acknowledge that innocent 

facts, when considered collectively, may permit the 

investigative detention.

Commonwealth v. Walls, 206 A.3d 537, 541-42 (Pa. Super. 2019) (citations 

omitted and formatting altered), appeal denied, 218 A.3d 393 (Pa. 2019). 

“[A]n investigative stop of a moving vehicle to be valid must be based upon 

objective facts creating a reasonable suspicion that the detained motorist is 

presently involved in criminal activity.” Commonwealth v. Sands, 887 A.2d 

261, 269 (Pa. Super. 2005) (citation and emphasis omitted). 

In Walls, for example, this Court affirmed the trial court’s ruling that 

reasonable suspicion existed where the defendant’s vehicle “drifted back and 

forth within its lane for approximately 300 yards, during which time it went 

from the right fog line, to the double yellow center line, and back atop the 

right fog line again.” Walls, 206 A.3d at 542. In that case, the trial court 

also “discussed how [the Pennsylvania State Trooper] relied on his eight years’ 

experience to infer that the movements he observed created reasonable 

suspicion of DUI justifying a traffic stop to permit further investigation 
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necessary to substantiate such suspicion.” Id. We added that the trooper 

also received a report from another officer that the defendant’s vehicle was 

“straddling the right fog line,” shortly before the trooper began following the 

vehicle and made his own observations of the defendant’s erratic driving. Id.

at 543. 

Instantly, Chief Stinsky testified as follows. At approximately 1:30 a.m., 

he was patrolling in a marked police car driving eastbound on Arch Street 

approaching Franklin Street. He observed Appellee’s vehicle traveling 

westbound on Arch Street, approaching the Franklin Street intersection. 

Appellee stopped at the stop sign at the intersection of Arch and Franklin 

Streets and turned right onto Franklin Street. Chief Stinsky testified that 

Appellee “made the turn very slowly and very wide.” N.T. at 5. Chief Stinsky 

stated that “[o]ver half of [Appellee’s] vehicle at least was in the opposite lane 

of travel,” for “less than five seconds probably.” Id. at 12. Chief Stinsky also 

estimated that Appellee returned to the proper lane of travel “somewhere 

between [100] and 200 feet” from the intersection. Id. at 11. 

During cross-examination, Chief Stinsky described the turn from Arch 

Street to Franklin Street as follows: 

Q Would you agree with me that Arch Street where [Appellee’s] 

vehicle was traveling is not exactly perpendicular to North Franklin 

Street?

A Yes.

Q Meaning it’s off to an angle that creates an awkward right-hand 

turn for motorists; would you agree with me?
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A It's not perpendicular. I can’t speak for the motorists who are 

driving there to assume what they were doing. I can tell you I 

see several hundred people do it without problem.

Id. at 9-10. Appellee also presented depictions of the area around the 

intersection of Arch and Franklin Streets from “Google Maps.” 

Chief Stinsky turned onto Franklin Street and followed Appellee for 

approximately 1,400 feet. Id. at 9. Chief Stinsky testified: 

The vehicle [wa]s traveling at odd rates of speed. It would speed 

up, slow down, speed up, slow down, weave a bit in the lane—so 

that’s about two blocks that are within the Borough, and there's 

no parking on those streets. There really isn’t a shoulder. So just 

as we exited the Borough I moved up close behind the car, my 

intention to initiate a traffic stop, and as I pulled in behind the car, 

the car made a right turn into the driveway of the Fleetwood Bible 

church. I pulled in behind the vehicle and activated my 

emergency equipment.

Id. at 5. On cross-examination, Chief Stinsky noted that Appellee was driving 

within the proper speed limit. Id. at 12. 

Chief Stinsky testified that he suspected that 

There was some issue with [Appellee] whether he was sleepy, 

whether that he was intoxicated. It was the time right about when 

bars were closing in the area. He was coming from the area where 

there’s the Fleetwood Legion; was about two blocks behind him. 

So I approached. So I was thinking there was a possibly some 

issue with the driver.

Id. at 5. When Appellee’s counsel asked whether he believed Appellee was 

lost, Chief Stinsky responded: 

I didn’t know what to believe, sir. The whole reason for the stop 

was to determine if he was in some kind of distress. I observed 

the violation of him crossing into the oncoming lane of travel, and 

I saw what appeared to be erratic driving movements. That could 
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have been any number of things. That was going to be based 

upon the contact I had with the motorist.

Id. at 14. 

Here, there is no dispute that Chief Stinsky was an experienced law 

enforcement officer. See id. at 4. The underlying stop occurred around the 

time when bars would close. See id. at 5. Although there were restaurants 

and bars in the area that Appellee was traveling, there was no evidence that 

Appellee was in one of them. See id. at 5. Additionally, the Commonwealth 

relied on testimony about (1) Appellee’s very slow and very wide turn during 

which over half of Appellee’s vehicle crossed the double yellow lines on 

Franklin Street for less than five seconds, (2) Appellee’s “odd rates of speed,” 

wherein he would “speed up [and] slow down,” and (3) the fact that Appellee 

“weaved in his lane a bit” over some two blocks within Fleetwood. See id. at 

5, 12.

Having considered the totality of the circumstances, we find no basis to 

reverse the trial court. We acknowledge that this is a close case because there 

were indicia that Appellee operated his vehicle in an erratic fashion. See

Walls, 206 A.3d at 542-43 (finding reasonable suspicion based on a vehicle 

that “drifted back and forth within its lane for approximately 300 yards, during 

which time it went from the right fog line, to the double yellow center line, 

and back atop the right fog line again”). However, without further specific, 

articulable, and objective facts in the record, we find no basis to conclude that 

the trial court erred in its factual and legal conclusions. Further, because the 
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record supports the trial court’s findings and legal conclusions, we will not 

disturb its ruling. See Hemingway, 192 A.3d at 129. Accordingly, we 

conclude that the Commonwealth has not met its burden of establishing 

reasonable suspicion. 

The Commonwealth next argues that it established probable cause to 

stop Appellee for a violation of 75 Pa.C.S. § 3309(1), which provides that “[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). Because the 

Commonwealth did not argue probable cause at the suppression hearing, this 

argument is waived. See N.T., 2/8/19, at 17; see also Salter, 993 A.2d at 

996; Pa.R.A.P. 302(a). 

In any event, this Court has stated that to establish probable cause,6

[t]he officer must be able to articulate specific facts possessed by 

him at the time of the questioned stop, which would provide 

probable cause to believe that the vehicle or the driver was in 

some violation of some provision of the Vehicle Code. Probable 

cause does not require certainty, but rather exists when 

criminality is one reasonable inference, not necessarily even the 

most likely inference. 

Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004) (citation 

omitted). As this Court noted in Commonwealth v. Enick, 70 A.3d 843 (Pa. 

Super. 2013), that language of Section 3309(1) “requires motorists to 

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6 A stop for a violation of Section 3309(1) requires probable cause. See 

Feczko, 10 A.3d at 1292. 
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maintain a single lane ‘as nearly as practicable[,]’” which permits 

consideration of “minor deviations.” Enick, 70 A.3d at 847 (noting other 

traffic laws do not contain similar language permitting minor deviations). 

Instantly, we conclude that the Commonwealth failed to establish 

probable cause. See Hemingway, 192 A.3d at 129. Appellee came to a stop 

on Arch Street before turning onto Franklin Street. The turn onto Franklin 

Street was at an acute angle. Appellant made a slow and wide right turn onto 

Franklin Street. While the turn was wide enough that half of his vehicle 

crossed the yellow line on Franklin Street, he returned to a proper lane of 

travel in less than five seconds. As the trial court noted there were no other 

cars present when Appellee made the turn. Given the totality of these 

circumstances, we agree with the trial court that the Commonwealth did not 

demonstrate probable cause to stop Appellee for a violation of Section 

3309(1). 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/18/2020