J-S65029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AARON HENRY SIMS,

Appellant No. 3212 EDA 2014

Appeal from the Judgment of Sentence November 14, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0006046-2013

BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 24, 2015

Appellant, Aaron Henry Sims, appeals from the judgment of sentence 

entered following his convictions of three counts of driving under the 

influence (“DUI”). We affirm.

The trial court summarized the factual and procedural history of this 

case as follows:

By way of background, Officer James Gibbas (“Officer 

Gibbas”) currently works for the Towamencin Township Police 

Department. Officer Gibbas has made over fifty Driving Under 

the Influence (“DUI”) arrests during his five year tenure with the 

Towamencin Township Police Department. Additionally, Officer 

Gibbas has received police training on detecting signs of DUI 

driving.

At approximately 2:00 a.m. on Friday, May 17, 2013, 

Officer Gibbas was on patrol duty in a fully marked police car at 

the intersection of Forty Foot Road and Sumneytown Pike in 

Towamencin Township, Montgomery County, Pennsylvania. Due 

to the number of bars nearby, that intersection has a history of 

DUI arrests. Officer Gibbas was conducting a selective 
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enforcement of the intersection for DUI drivers at a time when 

the bars were closing.

While monitoring the intersection, Officer Gibbas observed 

Appellant driving a blue Ford Explorer, traveling southbound on 

Forty Foot Road. Officer Gibbas observed Appellant stop at a red 

light on Forty Foot Road and Sumneytown Pike. Officer Gibbas 

also observed a second vehicle (“Vehicle 2”) abruptly pull behind 

Appellant’s vehicle and stop at the red light. The stop was so 

abrupt that Officer Gibbas thought the second vehicle was going 

to crash into the rear end of Appellant’s vehicle. Thereafter, 

Officer Gibbas observed a third vehicle (“Vehicle 3”) pull up 

behind Vehicle 2 and stop at the red light.

Based on Vehicle 2’s abrupt stop, Officer Gibbas decided to 

leave this monitoring site and follow the vehicles onto 

Sumneytown Pike once the light turned green. While Officer 

Gibbas was observing Vehicle 2 for DUI, he witnessed both 

Appellant’s vehicle and Vehicle 2 drift across the double yellow 

line and then drift back into [their] respective lane. Officer 

Gibbas also observed both vehicles cross over the fog line before 

returning back into their respective lane of travel.

Officer Gibbas testified that he observed Appellant’s 

vehicle drift at least three times within a one mile area. He also 

testified that Appellant’s drifting was separate and apart from 

the second driver’s drifting. Officer Gibbas admitted that he 

made his observations of Appellant’s vehicle about six to seven 

car lengths away, with two other vehicles (Vehicle 2 and Vehicle 

3) between their vehicles. Lastly, Officer Gibbas testified 

Appellant was otherwise compliant with all other traffic laws. 

Based on his observations of Appellant’s and Vehicle 2’s 

traffic violations, Officer Gibbas turned on his sirens to conduct a 

traffic stop of the vehicles. All three vehicles in front of Officer 

Gibbas pulled over in response to the sirens. Officer Gibbas 

radioed to Sergeant Wainwright and Officer Mahaffey for 

assistance with the traffic stop. Vehicle 3 was investigated by 

Sergeant Wainwright and Officer Mahaffey and eventually [was] 

permitted to leave. 

Both parties stipulated at the hearing that Sergeant 

Wainwright and Officer Mahaffey assisted Officer Gibbas with the 

investigatory detention of both Appellant’s vehicle and Vehicle 2. 
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Specifically, both parties stipulated that Sergeant Wainwright 

asked Appellant a number of cursory questions, including where 

he was coming from. In response, Appellant admitted that he 

was coming from Margaritas Restaurant where he consumed two 

beers. Sergeant Wainwright conducted filed sobriety tests, 

which led to Appellant’s arrest for DUI. 

After Appellant was arrested, Officer Mahaffrey conducted 

an investigatory search of his car, discovering small zip lock bags 

of marijuana in the console that were seized for evidence. 

Appellant was taken to Lansdale Hospital, where he submitted to 

a chemical blood test. 

On September 16, 2014, this court issued an order 

denying Appellant’s Motion to Suppress.[1] A bench trial was 

held on November 14, 2014, where Appellant was found guilty of 

three counts of DUI1[2]. This appeal followed.

1 75 Pa.C.S. § 3802(b), § 3802(a)(1) and §3802(d)(2).

Trial Court Opinion, 2/10/15, at 1-3. Both Appellant and the trial court 

complied with Pa.R.A.P. 1925. 

Appellant presents the following issue for our review:

1. Did the trial court err in denying Appellant’s Motion to 

Suppress any and all evidence used against him at trial?

Appellant’s Brief at 6. 

Appellant argues that Officer Gibbas failed to articulate with any 

specificity facts that would give him reasonable suspicion to stop Appellant. 

Appellant’s Brief at 10. Instead, Appellant asserts that the testimony was 

____________________________________________

1

 Appellant filed a motion to suppress “any and all items of evidence seized 

by law enforcement officers.” Motion to Suppress, 1/21/14, at 2. 

2

 Appellant was sentenced to ninety days to five years of imprisonment, the 

costs of prosecution, and a $1,500.00 fine.
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vague and included no evidence as to the severity of the drifting and 

uncertainty as to how many times it occurred. Id. Appellant further 

maintains that Officer Gibbas made assumptions based on prior DUI vehicle 

stops and failed to articulate facts establishing reasonable suspicion. Id. at 

13. Thus, it is Appellant’s position that the trial court erred by not granting 

Appellant’s motion to suppress any and all evidence used against him at 

trial. Id.

“When reviewing the propriety of a suppression order, an appellate 

court is required to determine whether the record supports the suppression 

court’s factual findings and whether the inferences and legal conclusions 

drawn by the suppression court from those findings are appropriate.” 

Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc). 

“Where the Commonwealth prevailed on the suppression motion, we 

consider only the evidence of the prosecution and so much of the defense 

that remains uncontradicted.” Commonwealth v. Cooper, 994 A.2d 589, 

591 (Pa. Super. 2010).

With respect to factual findings, we are mindful that it is the sole 

province of the suppression court to weigh the credibility of the 

witnesses. Further, the suppression court judge is entitled to 

believe all, part or none of the evidence presented.

Commonwealth v. Swartz, 787 A.2d 1021, 1023 (Pa. Super. 2001) (en 

banc). To the extent that the suppression court’s factual findings are 

supported by the record, “we are bound by those facts and will only reverse 

if the legal conclusions are in error.” Cooper, 994 A.2d at 591. As an 
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appellate court, it is our duty “to determine if the suppression court properly 

applied the law to the facts.” Commonwealth v. Maldonado, 14 A.3d 

907, 910 (Pa. Super. 2011). Moreover, we note that our scope of review 

from a suppression ruling is limited to the evidentiary record that was 

created at the suppression hearing. In re L.J., 79 A.3d 1073, 1086-1087 

(Pa. 2013).3

Regarding vehicle stops, the Motor Vehicle Code provides as follows:

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).

“The threshold justification for a vehicle stop is reasonable suspicion.” 

Commonwealth v. Hendricks, 927 A.2d 289, 290 (Pa. Super. 2007). The 

____________________________________________

3

 In L.J., our Supreme Court held that our scope of review from a 

suppression ruling is limited to the evidentiary record that was created at 

the suppression hearing. L.J., 79 A.3d at 1087. Prior to L.J., this Court 

routinely held that, when reviewing a suppression court’s ruling, our scope of 

review included “the evidence presented both at the suppression hearing 

and at trial.” Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa. 

Super. 2011) (quoting Commonwealth v. Chacko, 459 A.2d 311 (Pa. 

1983)). L.J. thus narrowed our scope of review of suppression court rulings 

to the evidence presented at the suppression hearing. In this case, 

Appellant’s suppression hearing was held after L.J. was decided. Therefore, 

the procedural rule announced in L.J. applies to the case at bar.
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police may stop a motorist on reasonable suspicion of DUI. 75 Pa.C.S. 

§ 6308(b); Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008) 

(“Extensive case law supports the conclusion [that] a vehicle stop for DUI 

may be based on reasonable suspicion, as a post-stop investigation is 

normally feasible.”); Commonwealth v. Sands, 887 A.2d 261, 270 (Pa. 

Super. 2005) (“[A] suspected violation for DUI is in fact a scenario where 

further investigation almost invariably leads to the most incriminating type 

of evidence . . . This type of evidence can only be obtained by a stop and 

investigation”). “In order to determine whether the police officer had 

reasonable suspicion, the totality of the circumstances must be considered. 

In making this determination, [a court] must give due weight . . . to the 

specific reasonable inferences [the police officer] is entitled to draw from the 

facts in light of his experience.” Commonwealth v. Hilliar, 943 A.2d 984, 

990 (Pa. Super. 2008). “[T]he totality of the circumstances test does not 

limit [an] inquiry to an examination of only those facts that clearly indicate 

criminal conduct. Rather, even a combination of innocent facts, when taken 

together, may warrant further investigation by the police officer.” Id. 

Further, our Supreme Court has stated, “[W]hen the existence of reasonable 

suspicion combines with the expectation that the stop will allow light to be 

shed on the relevant matters, the stop is not unconstitutional.” Chase, 960 

A.2d at 115.
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This Court has ruled that erratic driving alone can impart a reasonable 

suspicion of DUI. See Commonwealth v. Hughes, 908 A.2d 924, 926 (Pa. 

Super. 2006) (reasonable suspicion to stop vehicle for DUI existed where, in 

early morning hours, police observed vehicle swerving between left and right 

lanes); Sands, 887 A.2d at 270 (reasonable suspicion to stop vehicle for 

DUI existed where, in the early morning hours, police observed vehicle drift 

across a roadway fog line and then slowly drift back into lane).

The provisions of the DUI statutes with which Appellant was charged 

and convicted provide as follows:

§ 3802. Driving under influence of alcohol or controlled 

substance

(a) General impairment.—

(1) An individual may not drive, operate or be in 

actual physical control of the movement of a vehicle 

after imbibing a sufficient amount of alcohol such 

that the individual is rendered incapable of safely 

driving, operating or being in actual physical control 

of the movement of the vehicle.

* * * 

(b) High rate of alcohol.--An individual may not drive, operate 

or be in actual physical control of the movement of a vehicle 

after imbibing a sufficient amount of alcohol such that the 

alcohol concentration in the individual’s blood or breath is at 

least 0.10% but less than 0.16% within two hours after the 

individual has driven, operated or been in actual physical control 

of the movement of the vehicle.

* * *
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(d) Controlled substances.--An individual may not drive, 

operate or be in actual physical control of the movement of a 

vehicle under any of the following circumstances:

* * *

(2) The individual is under the influence of a drug or 

combination of drugs to a degree which impairs the 

individual’s ability to safely drive, operate or be in 

actual physical control of the movement of the 

vehicle.

75 Pa.C.S § 3802 (a)(1), (b), (d)(2).

In addressing Appellant’s issue, the trial court provided the following 

analysis and conclusion:

In [the] instant case, Officer Gibbas testified to specific 

and articulable facts that taken together create a reasonable 

suspicion that [Appellant] was DUI. . . . [I]t [was] two o’clock in 

the morning on a Friday, the time when bars close. 

Officer Gibbas was conducting a selective enforcement at the 

intersection of Forty Foot Road and Sumneytown Pike for 

possible DUI drivers. The intersection is an area where Officer 

Gibbas, as an experienced officer, knows its history of DUI 

arrests. While monitoring the intersection, Officer Gibbas 

observed three vehicles stop behind each other at a red light. 

Vehicle 2’s stop was so abrupt that Officer Gibbas thought 

Vehicle 2 was going to crash into [Appellant’s] vehicle. Based on 

the second driver’s abrupt stop, Officer Gibbas followed the three 

vehicles, whereby he witnessed [Appellant’s] vehicle drift across 

the double yellow line as well as the fog line at least three times 

in one mile.

Based on the totality of circumstances in this case, 

[Appellant’s] drifting heightened the implication that he could be 

DUI. . . . Officer Gibbas conducted a traffic stop of [Appellant’s] 

vehicle for investigatory purposes. This Court concludes that 

Officer Gibbas possessed reasonable suspicion based on his 

experience with DUI arrests, his training with detecting DUI 

signs and his specific articulable observations that [Appellant] 

committed violations of the Motor Vehicle Code. Thus, the stop 

of [Appellant’s] vehicle was lawful. 
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Trial Court Opinion, 2/10/15, at 7-8.

The trial court’s summation of evidence is supported by the record. 

Officer Gibbas was patrolling in the early morning hours at an intersection 

known for its history of DUI arrests. N.T., 7/21/14, at 8-9. Officer Gibbas 

provided the following testimony regarding Appellant’s erratic driving:

[Officer Gibbas]: I was focused on – initially focused on the 

second vehicle that was in line. He is the one that made the 

abrupt stop. While watching that vehicle I also noticed that both 

that one and [Appellant’s vehicle] in front of it were drifting over 

the double yellow line. I saw them drift over the line and then 

back into the respective lane and then also cross over the fog 

line before returning back to their lane of travel.

[Counsel]: And how many times specifically did you see 

[Appellant’s] vehicle drift?

[Officer Gibbas]: I do not recall exactly, but between Forty Foot 

Road and Troxel Road I would say it was approximately three 

times just on my own personal – the way that I work I don’t stop 

vehicles unless I see them, you know, cross lines at least three 

times.

[Counsel]: And how far is that between these two areas?

[Officer Gibbas]: Approximately one mile.

Id. at 10-11. Officer Gibbas clarified that the two vehicles in front of him 

did not drift in tandem, but drifted across the lines independently of one 

another. Id. at 16-17. Officer Gibbas had a clear view of the two drifting 

vehicles, including Appellant’s, that were in front of him. Id. at 19. 

Given the totality of circumstances, Officer Gibbas had reasonable 

suspicion that Appellant was driving under the influence. As a result, the 
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stop of Appellant’s vehicle was lawful. Accordingly, the trial court did not err 

in denying Appellant’s motion to suppress.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2015