J-A21040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

JOHN J. SCHWARTZER : No. 3586 EDA 2015

Appeal from the Order October 28, 2015

in the Court of Common Pleas of Bucks County,

Criminal Division, No(s): CP-09-CR-0003071-2015

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 19, 2016

The Commonwealth of Pennsylvania appeals from the Order granting 

John J. Schwartzer’s (“Schwartzer”) Post-Sentence Motion for Judgment of 

Acquittal/Arrest of Judgment (“Post-Sentence Motion”) and vacating the trial 

court’s finding of guilt of driving under the influence (“DUI”) and obscured 

plates.1 We reverse and remand for the trial court to reinstate the guilty 

verdict and sentence.

On November 23, 2014, at approximately 1:40 a.m., Officer 

Christopher O’Neill (“Officer O’Neill”) of the Warminster Township Police 

Department was on patrol in Warminster Township. Officer O’Neill observed 

a maroon Lexus 350 SUV driving on Street Road in the left lane. Officer 

O’Neill could not see a registration/license plate on the vehicle, despite the 

fact that the weather was clear. As a result, Officer O’Neill stopped the 

 

1 See 75 Pa.C.S.A. §§ 3802(a)(2); 1332(b)(3).
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vehicle. Once the vehicle had stopped, Officer O’Neill shined his spotlight on 

the vehicle and observed a dealer tag in the left side of the rear-tinted 

window. Officer O’Neill approached the vehicle and told Schwartzer that the 

stop occurred because he had been unable to see the registration/license 

plate. Schwartzer stated that the plate had been placed in the window 

because a screw for the license plate bracket had broken. As Schwartzer 

spoke, Officer O’Neill observed that Schwartzer smelled like alcohol, was 

slurring his speech and had glassy, bloodshot eyes. Schwartzer indicated 

that he had two drinks, but was not drunk. Thereafter, Officer O’Neill 

performed field sobriety tests and administered a portable breath test. 

Officer O’Neill determined that Schwartzer was unable to safely operate the 

vehicle and placed him under arrest for DUI. Following his arrest, 

Schwartzer’s blood alcohol content (BAC) was found to be .089%.

Schwartzer was charged with the above-mentioned crimes, as well as 

DUI under 75 Pa.C.S.A. § 3802(a)(1). Schwartzer filed an omnibus Pretrial 

Motion seeking, inter alia, to suppress the evidence against him based upon 

the illegality of the stop. The trial court denied the Motion. The case 

proceeded to a bench trial, after which the trial court found Schwartzer 

guilty of DUI – B.A.C. 0.08<0.10 and obscured plates – illegible at a 

reasonable distance and not guilty of DUI-general impairment. The trial 

court sentenced Schwartzer to five days to six months in jail, and imposed a 

fine of $325.00. 
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On September 4, 2015, Schwartzer filed a Post-Sentence Motion, 

arguing that the trial court improperly denied his Motion to Suppress; the 

verdict was against the weight of the evidence; and there was insufficient 

evidence to support the verdict. The trial court directed Schwartzer to file a 

brief in support of his Motion by October 16, 2015, and the Commonwealth 

to respond by October 26, 2015. The trial court also scheduled oral 

argument on the Motion. Schwartzer filed a brief; however, the 

Commonwealth failed to file a timely brief. On October 28, 2015, the trial 

court, finding that the Commonwealth had no objection to Schwartzer’s 

Motion, granted the Motion and vacated the guilty verdict and sentence.2 

The Commonwealth filed a Motion to Vacate Order, which was denied. 

 

2 The trial court’s Order stated the following, in relevant part:

The Commonwealth has presented no [b]rief or argument as of 

2:30 p.m.[,] October 28, 2015, nor requested an extension of 

time to present same, despite having been [o]rdered to do so. 

By its conduct[,] the Commonwealth has waived its right to 

present oral argument. The [trial c]ourt has reviewed 

[Schwartzer’s] brief and argument and[,] noting no response 

from the Commonwealth[,] concludes that the Commonwealth 

has no objection to [Schwartzer’s] request for relief. To the 

extent that the Commonwealth may wish to assert an argument 

in opposition to [Schwartzer’s] [Post-Sentence] Motion[,] said 

request is untimely and has been waived.

Accordingly, oral argument is CANCELLED and the relief 

requested by [Schwartzer] is GRANTED.

Order, 10/28/15, at 1-2 (unnumbered).
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The Commonwealth filed a timely Notice of Appeal, and a courtordered Pennsylvania Rule of Appellate Procedure 1925(b) Concise 

Statement.

On appeal, the Commonwealth raises the following questions for our 

review: 

1. Did the trial court err and/or abuse its discretion in granting 

[Schwartzer’s] Post-Sentence Motion [] based on a conclusion 

that the Commonwealth did not object to the relief requested 

and/or waived its right to object to relief where the 

Commonwealth inadvertently failed to file a responsive brief 

in accordance with the trial court’s briefing schedule and filed 

a timely [M]otion for reconsideration; by awarding a remedy 

disproportionate to the violation found by the trial court; 

and/or by failing to undertake a review of the merits of 

[Schwartzer’s] Post-Sentence Motion?

2. Did the trial court err and/or abuse its discretion in granting 

[Schwartzer’s] Post-Sentence Motion [] where suppression of 

the traffic stop was unwarranted as it was based on probable 

cause; where the officer developed reasonable suspicion that 

[Schwartzer] was driving under the influence of alcohol; 

where [Schwartzer’s] arrest was supported by probable 

cause; and/or the verdict of guilty was based on legally 

sufficient evidence and was not against the weight of the 

evidence?

Brief for the Commonwealth at 4 (some capitalization omitted).

In its first claim, the Commonwealth contends that the trial court erred 

in granting Schwartzer’s Post-Sentence Motion based upon the fact that the 

Commonwealth did not file a responsive brief to the Motion and, therefore, 

did not object to the relief requested. Id. at 22, 33. The Commonwealth 

argues that under Pennsylvania Rule of Criminal Procedure 720, Schwartzer 

is required to set forth any claims that he seeks to raise with specificity; 
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however, there is nothing in the rule that requires the Commonwealth file a 

responsive brief to avoid waiver. Id. at 22-23, 27; see also id. at 26 

(wherein the Commonwealth claims that it immediately filed a Motion to 

Vacate when learning of its inadvertent failure to file a responsive brief to 

the Post-Sentence Motion). The Commonwealth asserts that the trial court’s 

acquittal of Schwartzer based upon its inadvertent failure to file a brief is 

wholly disproportionate to the violation. Id. at 27-28, 29-31.

The Commonwealth also points out that Rule 720 requires a trial court 

to make a decision within 120 days of the filing of a post-sentence motion 

and that the trial court granted Schwartzer’s Motion 54 days after it was filed 

and prior to the scheduled oral argument. Id. at 28-29. The 

Commonwealth claims that contrary to the trial court’s assertion that it 

decided the Motion due to time constraints, the trial court had plenty of time 

to decide the Motion and did not explain how the failure to file a brief 

impinged upon this timeframe. Id. at 29. The Commonwealth also argues 

that the trial court failed to address Schwartzer’s claims on the merits. Id. 

at 25, 31-33.

“The interpretation of the Rules of Criminal Procedure presents a 

question of law and therefore, ... our standard of review is de novo and our 

scope of review is plenary.” Commonwealth v. Dowling, 959 A.2d 910, 

913 (Pa. 2008).

Rule 720 states the following, in relevant part:
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***

(B) Optional Post-Sentence Motion.

(1) Generally.

(a) The defendant in a court case shall have the right to make a 

post-sentence motion. All requests for relief from the trial court 

shall be stated with specificity and particularity, and shall be 

consolidated in the post-sentence motion, which may include:

(i) a motion challenging the validity of a plea of guilty or 

nolo contendere, or the denial of a motion to withdraw 

a plea of guilty or nolo contendere;

(ii) a motion for judgment of acquittal;

(iii) a motion in arrest of judgment;

(iv) a motion for a new trial; and/or

(v) a motion to modify sentence.

***

(2) Trial Court Action.

(a) Briefing Schedule. Within 10 days after a post-sentence 

motion is filed, if the judge determines that briefs or memoranda 

of law are required for a resolution of the motion, the judge shall 

schedule a date certain for the submission of briefs or 

memoranda of law by the defendant and the Commonwealth.

***

(3) Time Limits for Decision on Motion. The judge shall not 

vacate sentence pending decision on the post-sentence motion, 

but shall decide the motion as provided in this paragraph.

(a) Except as provided in paragraph (B)(3)(b), the judge shall 

decide the post-sentence motion, including any supplemental 

motion, within 120 days of the filing of the motion. If the judge 

fails to decide the motion within 120 days, or to grant an 

extension as provided in paragraph (B)(3)(b), the motion shall 

be deemed denied by operation of law.

***

Comment
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***

Briefs; Transcripts; Argument

Under paragraph (B)(2)(a), the judge should determine, on a 

case-by-case basis, whether briefs or memoranda of law are 

required for a fair resolution of the post-sentence motion. If 

they are not needed, or if a concise summary of the relevant law 

and facts is sufficient, the judge should so order. ...

Pa.R.Crim.P. 720; see also Commonwealth v. Borrero, 692 A.2d 158, 

160 (Pa. Super. 1997) (stating that “[t]he fundamental purpose underlying 

the filing of post-sentencing motions is to provide the trial court with the 

first chance to correct any errors which might warrant an arrest of judgment 

or the grant of a new trial.”). 

Rule 720 allows the trial court discretion in determining whether briefs 

are required to resolve the motion. See Pa.R.Crim.P. 720(B)(2)(a); 

Pa.R.Crim.P. 720, cmt. However, Rule 720 does not include any language 

allowing a trial court to find waiver where the opposing party, the 

Commonwealth, fails to file a responsive brief. Indeed, under Rule 720, the 

defendant, not the Commonwealth, has the burden to prove, with “specificity 

and particularity,” whether he/she is entitled to relief. See Pa.R.Crim.P. 

720(B)(1)(a). While the Commonwealth clearly failed to comply with the 

trial court’s Order to file a brief, the trial court cannot use this failure to 

grant Schwartzer’s Motion. Under the plain language of Rule 720, the trial 

court was required to address the merits of Schwartzer’s claims in the 
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Motion, regardless of whether the Commonwealth has filed a responsive 

brief, within 120 days of the filing of the Motion.3 

Furthermore, contrary to the trial court’s reasoning that Rule 720’s 

120-day time limit would have passed had it not found that the 

Commonwealth waived any objection to the Post-Sentence Motion, see Trial 

Court Opinion, 1/25/16, at 10, 12, the trial court decided the Motion only 54 

days after its filing. Thus, the Commonwealth’s failure to file a brief did not 

immediately implicate Rule 720’s time limit. Based upon the foregoing, we 

conclude that the trial court’s finding that the Commonwealth waived its 

right to challenge the issues raised by Schwartzer, for failing to file a 

responsive brief to the Post-Sentence Motion, was error. See 

Commonwealth v. Burke, 781 A.2d 1136, 1144 (Pa. 2001) (noting that “a 

trial court should consider dismissal of charges where the actions of the 

Commonwealth are egregious and where demonstrable prejudice will be 

suffered by the defendant if the charges are not dismissed.”) (citation 

omitted); id. (stating that “[d]ismissal of criminal charges punishes not only 

the prosecutor ... but also the public at large, since the public has a 

 

3 We note that Schwartzer cites to Bucks County Rule of Criminal Procedure 

1123(g) for the proposition that the failure to file a timely brief following the 

filing of the Post-Sentence Motion renders the Commonwealth’s claims 

waived. Brief for Appellee at 8. However, Rule 1123(g) applies strictly to 

the defendant, and does not apply to the Commonwealth. See Bucks 

Co.R.Crim.P. 1123(g) (stating that “[f]ailure to timely file his briefs may be 

regarded as an abandonment of the motion by defendant.”). Moreover, Rule 

1123(h) sets forth the time for the Commonwealth to file a responsive brief, 

but does not include any language regarding waiver of claims for failing to 

file a brief. See Bucks Co.R.Crim.P. 1123(h).
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reasonable expectation that those who have been charged with crimes will 

be fairly prosecuted to the full extent of the law.”) (citation omitted); see 

generally Commonwealth v. A.G., 955 A.2d 1022, 1025 (Pa. Super. 

2008) (stating that the dismissal of charges for a prosecutor’s violation of 

discovery rules was too drastic).4

However, this does not end our inquiry, as the trial court noted that it 

reviewed the assertions in Schwartzer’s Post-Sentence Motion5and 

determined that they have merit. See Trial Court Opinion, 1/25/16, at 4-5, 

13. The Commonwealth first argues that the evidence was sufficient to 

support Schwartzer’s DUI conviction. Brief for the Commonwealth at 33, 35-

37. The Commonwealth points out that Schwartzer’s sufficiency claim in his 

Post-Sentence Motion is limited to whether the Commonwealth provided 

evidence related to the margin of error for the device used to determine 

 

4 The trial court asserts that following its entry of the Order granting the 

Post-Sentence Motion, the Commonwealth engaged in ex parte

communications with the court. See Trial Court Opinion, 1/25/16, at 10-11. 

The trial court notes that the Commonwealth directly communicated with the 

court without copying defense counsel on the communication. Id. at 10. 

The Commonwealth argues that it sent a letter, attached to an email, to the 

trial judge’s administrative assistant, and that defense counsel was copied 

on the email. Brief for the Commonwealth at 25-26. However, based upon 

our above determination that the trial court could not grant Schwartzer’s 

Post-Sentence Motion based upon the Commonwealth’s failure to file a 

responsive brief, we need not further discuss this matter.

5

In his Post-Sentence Motion, Schwartzer argued that the trial court erred in 

failing to grant his suppression motion where Officer O’Neill illegally detained 

him by stopping his vehicle for an offense that could not be investigated, 

and conducting a DUI investigation without probable cause; the evidence 

was insufficient to support the convictions; and the verdict was against the 

weight of the evidence.
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Schwartzer’s BAC (Intoxilyzer 8000), and that because his BAC was .089%, 

the margin of error would have impacted the decision. Id. at 36. The 

Commonwealth contends that it presented evidence of the margin of error 

for the Intoxilyzer 8000, and that even if Schwartzer’s BAC had deviated 

upwards or downwards, his BAC would be at least .08%, but less than .10%. 

Id. at 37. The Commonwealth claims that the trial court’s grant of 

Schwartzer’s Post-Sentence Motion in this regard was in error. Id.

Our standard of review when considering the 

Commonwealth’s claim that the trial court erred in granting 

appellee’s motion for judgment of acquittal is as follows.

A motion for judgment of acquittal challenges the sufficiency of 

the evidence to sustain a conviction on a particular charge, and 

is granted only in cases in which the Commonwealth has failed 

to carry its burden regarding that charge.

Commonwealth v. Foster, 33 A.3d 632, 634-35 (Pa. Super. 2011) 

(citation omitted); see also Commonwealth v. Feathers, 660 A.2d 90, 

94-95 (Pa. Super. 1995) (stating that “[i]n passing upon a post-verdict 

motion for judgment of acquittal, a trial court is limited to determining the 

presence or absence of that quantum of evidence necessary to establish the 

elements of the crime.”) (citation and quotation marks omitted). When 

ruling on a motion in arrest of judgment, “the trial court is limited to 

rectifying trial errors, and cannot make a redetermination of credibility and 

weight of the evidence.” Commonwealth v. Marquez, 980 A.2d 145, 147-

48 (Pa. Super. 2009) (en banc) (citation omitted). Indeed, “[t]he authority 

of a trial court over a nonjury verdict is no greater than the authority over a 
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jury verdict.” Commonwealth v. Melechio, 658 A.2d 1385, 1387 (Pa. 

Super. 1995).

Section 3802(a)(2) states the following: 

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 0.08% but less than 

0.10% within two hours after the individual has driven, operated 

or been in actual physical control of the movement of the 

vehicle.

75 Pa.C.S.A. § 3802(a)(2). Further, testing may be conducted to determine 

the amount of alcohol in a person’s blood:

(c) Test results admissible in evidence.--In any summary 

proceeding or criminal proceeding in which the defendant is 

charged with a violation of section 3802 or any other violation of 

this title arising out of the same action, the amount of alcohol or 

controlled substance in the defendant’s blood, as shown by 

chemical testing of the person’s breath or blood, which tests 

were conducted by qualified persons using approved equipment, 

shall be admissible in evidence.

(1) Chemical tests of breath shall be performed on devices 

approved by the Department of Health using procedures 

prescribed jointly by regulations of the Departments of 

Health and Transportation. Devices shall have been 

calibrated and tested for accuracy within a period of time 

and in a manner specified by regulations of the 

Departments of Health and Transportation. For purposes 

of breath testing, a qualified person means a person who 

has fulfilled the training requirement in the use of the 

equipment in a training program approved by the 

Departments of Health and Transportation. A certificate or 

log showing that a device was calibrated and tested for 

accuracy and that the device was accurate shall be 

presumptive evidence of those facts in every proceeding in 

which a violation of this title is charged.
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Id. § 1547(c)(1); see also 67 Pa. Code § 77.24 (setting forth the 

regulations regarding breath test procedures, including that the person being 

tested shall be kept under a police officer’s observation for at least 20 

consecutive minutes prior to the administration of the first test, “during 

which time the person may not have ingested alcoholic beverages or other 

fluids, regurgitated, vomited, eaten or smoked.”); id. § 77.25 (setting forth 

the accuracy inspection tests and procedures to certify the accuracy of the 

equipment).

On November 23, 2014, Officer O’Neill stopped Schwartzer’s vehicle 

after being unable to see Schwartzer’s license plate. N.T., 8/26/15, at 12-

14; see also N.T., 8/27/15, at 61 (wherein the parties stipulated to the 

entry of Officer O’Neill’s testimony from the August 26, 2015 suppression 

hearing into the bench trial). After approaching Schwartzer’s vehicle and 

speaking with Schwartzer, Officer O’Neill observed that Schwartzer was 

slurring his speech, had glassy, bloodshot eyes, and smelled like alcohol. 

N.T., 8/26/15, at 16, 18. Officer O’Neill administered field sobriety tests on

Schwartzer, which Schwartzer failed. Id. at 22-30, 37, 39, 40. Officer 

O’Neill then utilized a portable breath test on Schwartzer. Id. at 30. After 

conducting all of these tests, Officer O’Neill arrested Schwartzer for DUI. Id.

After Schwartzer was arrested for DUI, Officer O’Neill took Schwartzer 

to the Warminster Township Police Department to test his BAC. N.T., 

8/27/15, at 63. Officer O’Neill was authorized to operate the Intoxilyzer 
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8000, a type A breath test device, and a device approved for breath tests. 

Id. at 65; see also Commonwealth Exhibit 3. Officer O’Neill followed the 

protocol required by 67 Pa. Code § 77.24 by observing Schwartzer for 20 

minutes prior to administering the test, ensuring that Schwartzer had 

nothing to eat or drink during that time, and having Schwartzer perform two 

tests on the machine. N.T., 8/27/15, at 63; see also id. at 70. Officer 

O’Neill also indicated that the Intoxilyzer 8000 used on Schwartzer was 

working properly and produced a BAC of .089%. N.T., 8/27/15, at 66-67. 

Further, the parties stipulated to the admission of the various calibrations of 

the Intoxilyzer 8000. Id. at 67-68; see also Commonwealth Exhibit 5, 6. 

Specifically, the Intoxilyzer 8000 had been calibrated on November 21, 

2014, two days prior to the incident, and had an average deviation of 

.0022%. See Commonwealth Exhibit 6. 

Here, the evidence, viewed in a light most favorable to the 

Commonwealth, supported Schwartzer’s DUI conviction. See Marquez, 980 

A.2d at 148 (stating that “[a]ll of the evidence must be read in the light 

most favorable to the Commonwealth and it is entitled to all reasonable 

inferences arising therefrom. The effect of such a motion is to admit all the 

facts which the Commonwealth’s evidence tends to prove.”) (citation 

omitted); see also Commonwealth v. Kowalek, 647 A.2d 948, 952 (Pa. 

Super. 1994) (stating that “the driver [who] was not in control of himself, 

such as failing to pass a field sobriety test, could establish the driver was 
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under the influence of alcohol to a degree which rendered him incapable of 

safe driving, notwithstanding the absence of evidence of erratic or unsafe 

driving.”). Indeed, the Commonwealth, through the stipulation of both 

parties, introduced evidence of the accuracy of the Intoxilyzer 8000. The 

evidence established that even if Schwartzer’s BAC had deviated upwards 

(.0912%) or downwards (.0868%) based upon the calibration deviation, the 

evidence was sufficient to support Schwartzer’s conviction of DUI – B.A.C. 

0.08<0.10. 

As noted above, when addressing Schwartzer’s arrest of judgment 

claim, the trial court was limited to accepting all of the evidence and 

reasonable inferences and determining whether the evidence was insufficient 

to find Schwartzer guilty of DUI. See Feathers, 660 A.2d at 94-95; see 

also Marquez, 980 A.2d at 148. Because the trial court employed an 

incorrect standard of review by making new credibility determinations on the 

testimony and evidence presented at trial, we conclude that the 

Commonwealth’s claim has merit and reverse the trial court’s Order granting 

Schwartzer’s Post-Sentence Motion. See Feathers, 660 A.2d at 95-96 

(stating that the trial court erred in granting defendant’s motion for 

judgment of acquittal by re-evaluating the credibility of witnesses and 

concluding that the evidence, viewed in a light most favorable to the 

Commonwealth, was sufficient to support defendant’s DUI conviction).
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The Commonwealth also notes that in his Post-Sentence Motion, 

Schwartzer raised a weight of the evidence claim. Brief for the 

Commonwealth at 38. The Commonwealth points out that in his PostSentence Motion, Schwartzer argued that the verdict was against the weight 

of the evidence because he was able to drive without committing any 

moving violations and answer Officer O’Neill’s questions. Id. The 

Commonwealth argues that it was not required to demonstrate that 

Schwartzer was incapable of safe driving. Id. at 41. The Commonwealth 

claims that the verdict was not against the weight of the evidence based 

upon Schwartzer’s BAC, the fact that Schwartzer had an odor of alcohol, 

slurred his speech, had glassy eyes, and failed numerous field sobriety tests. 

Id. at 40, 41-42.

When ruling on a motion in arrest of judgment, a trial court is limited 

to rectifying trial errors, and “cannot make a redetermination of ... [the] 

weight of the evidence.” Marquez, 980 A.2d at 147–48.

At trial, the Commonwealth did not have to demonstrate that 

Schwartzer was incapable of safe driving. See 75 Pa.C.S.A. § 3802(a)(2). 

Instead, the Commonwealth had to prove that Schwartzer’s BAC was 

between .08% and .10%, within two hours of driving or operating his 

vehicle. See id. The evidence supported the DUI verdict and the trial court 

cannot reweigh the evidence in granting Schwartzer’s Post-Sentence Motion.
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Finally, the Commonwealth states that in his Post-Sentence Motion, 

Schwartzer claimed that the trial court erred in failing to grant his 

suppression Motion where Officer O’Neill had illegally detained him by 

stopping his vehicle for an offense that could not be investigated, and 

conducting a DUI investigation without probable cause. Brief for the 

Commonwealth at 42. The Commonwealth argues that Officer O’Neill had 

probable cause to stop the vehicle for violating 75 Pa.C.S.A. § 1332(b)(3), 

as he could not see the registration/license plate in the required area of the 

vehicle. Id. at 43. The Commonwealth asserts that because the stop was 

lawful, Officer O’Neill properly made contact with Schwartzer, and could 

investigate a DUI based upon the observed signs of intoxication. Id. at 44-

45. The Commonwealth further claims that Officer O’Neill had probable 

cause to arrest Schwartzer for DUI. Id. at 45-46. The Commonwealth 

contends that the trial court erred in granting Schwartzer’s Post-Sentence 

Motion as to his suppression of evidence claim. Id. at 47.

[With regard to] a suppression order, we follow a clearly 

defined standard of review and consider only the evidence from 

the defendant’s witnesses together with the evidence of the 

prosecution that, when read in the context of the entire record, 

remains uncontradicted. The suppression court’s findings of fact 

bind an appellate court if the record supports those findings. 

The suppression court’s conclusions of law, however, are not 

binding on an appellate court, whose duty is to determine if the 

suppression court properly applied the law to the facts.

Commonwealth v. Korn, 139 A.3d 249, 252–53 (Pa. Super. 2016) 

(citation omitted).
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The Motor Vehicle Code sets forth a law enforcement officer’s authority 

to stop a vehicle for an alleged violation as follows:

Whenever 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’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.A. § 6308(b).

Traffic 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[6]

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 encumbent 

[sic] 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.

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en 

banc) (citations, quotation marks, and emphasis omitted, footnote added); 

see also Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008) (stating 

that to conduct a non-investigative stop for a violation of the Motor Vehicle 

Code, a police officer must have probable cause to believe an offense has 

occurred). “The police have probable cause where the facts and 

 

6 Terry v. Ohio, 392 U.S. 1 (1968).
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circumstances within the officer’s knowledge are sufficient to warrant a 

person of reasonable caution in the belief that an offense has been or is 

being committed. We evaluate probable cause by considering all relevant 

facts under a totality of circumstances analysis.” Commonwealth v. 

Hernandez, 935 A.2d 1275, 1284 (Pa. 2007) (citation and quotation marks 

omitted). “[P]robable cause does not require certainty, but rather exists 

when criminality is one reasonable inference, not necessarily even the most 

likely inference.” Commonwealth v. Salter, 121 A.3d 987, 994 (Pa. 

Super. 2015) (citation omitted).

On November 23, 2014, at approximately 1:40 a.m., Officer O’Neill 

observed Schwartzer driving his vehicle on Street Road, but could not see a 

registration/license plate on the vehicle, despite the fact that the weather 

was clear. N.T., 8/26/15, at 12-14. Officer O’Neill was approximately two 

car lengths behind Schwartzer’s vehicle. Id. at 14. As a result, Officer 

O’Neill activated his emergency lights and stopped the vehicle. Id. Once 

the vehicle had stopped, Officer O’Neill shined his spotlight on the vehicle 

and observed a dealer tag in the left side of the tinted rear window. Id. at 

15-16, 80, 81-82. Officer O’Neill testified that the placement of a 

registration plate in the rear window was illegal. Id. at 80.

Based on this evidence, Officer O’Neill had probable cause to believe 

that Schwartzer’s vehicle was in violation of 75 Pa.C.S.A. § 1332(b)(3) 

(stating that “[i]t is unlawful to display on any vehicle a registration plate 
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which ... is otherwise illegible at a reasonable distance or is obscured in any 

manner.”). Indeed, the trial court found “that the police officer had the 

right to pull [Schwartzer] over.” Trial Court Opinion, 1/25/16, at 13 n.2 

(quoting N.T., 8/27/15, at 48) (wherein the trial court finds “as a fact that 

the police officer had the right to pull [Schwartzer] over.”); see also N.T.,

8/27/15, at 56 (in denying Schwartzer’s Motion to Suppress, stating that “it 

was perfectly reasonable for [Officer O’Neill] to pull the car over.”). Further, 

the fact that Officer O’Neill did not observe any erratic driving or other 

moving violations by Schwartzer does not negate the finding of probable 

cause to stop the vehicle. See Chase, 960 A.2d at 113 (stating that “[t]he 

Fourth Amendment does not prevent police from stopping and questioning 

motorists when they witness or suspect a violation of traffic laws, even if it is
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a minor offense.”).7 Thus, under the totality of the circumstances, Officer 

O’Neill’s testimony was sufficient to establish probable cause to justify the 

traffic stop. See Salter, 121 A.3d at 993-94 (concluding that the officer had 

probable cause to stop the defendant’s vehicle where officer could not see 

defendant’s registration plate from a distance of 50 feet); Commonwealth 

v. Wilbert, 858 A.2d 1247, 1250 (Pa. Super. 2004) (concluding that 

probable cause existed to stop appellant’s vehicle where officer, who was 

three to four car lengths behind appellant, could not identify the characters 

on the vehicle’s registration plate, and the fact that the officer could read the 

characters after observing the plate up close did not negate the probable 

cause to stop the vehicle).

Following the legal stop, Officer O’Neill, who had taken part in over 

100 DUI investigations, testified that he observed Schwartzer’s glassy, 

 

7 We note that in his brief in support of his Post-Sentence Motion, 

Schwartzer argues that Officer O’Neill followed Schwartzer “to gather 

observations to support a DUI investigation.” Brief in Support of PostSentence Motion, 10/15/16, at 9 (unnumbered); see also Trial Court 

Opinion, 1/25/16, at 4 (stating that Officer O’Neill “chose to follow the 

vehicle for an unnecessary length of time on the investigation of the noncompliant license plate, and in so doing gathered information which 

demonstrated that the car was being operated safely.”). To the extent 

Schwartzer argues that Officer O’Neill’s stop of the vehicle was merely a 

pretext to investigate a potential DUI, we note that a traffic stop that is 

merely a pretext for some other investigation does not automatically require 

the suppression of evidence found after the traffic stop. See Whren v. 

U.S., 517 U.S. 806, 812-13 (1996) (establishing a bright-line rule that any 

technical violation of a traffic code legitimizes a stop, even if the stop is 

merely a pretext for an investigation of some other crime); Chase, 960 A.2d 

at 120 (stating that “[i]f police can articulate a reasonable suspicion of a 

Vehicle Code violation, a constitutional inquiry into the officer’s motive for 

stopping the vehicle is unnecessary.”).
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bloodshot eyes, smelled the odor of alcohol on his person, and noted that 

Schwartzer was slurring his speech, which are all signs of intoxication. N.T., 

8/26/15, at 11, 16, 18. In addition, Schwartzer admitted that he had 

consumed two alcoholic beverages. Id. at 18. Further, Officer O’Neill 

administered field sobriety tests, which Schwartzer failed. Id. at 22-30, 37, 

39, 40. After Officer O’Neill conducted the portable breath test on 

Schwartzer, Officer O’Neill determined that Schwartzer was incapable of safe 

driving and placed him under arrest. Id. at 30. 

In denying the Motion to Suppress, the trial court found the testimony 

of Officer O’Neill to be credible and determined that Officer O’Neill had 

probable cause to arrest Schwartzer for DUI based upon his observations 

and Schwartzer’s failure of the field sobriety tests. See N.T., 8/27/15, at 

56-59. However, the trial court, in granting Schwartzer’s Post-Sentence 

Motion, reweighed Officer O’Neill’s testimony and determined that there was 

no probable cause to arrest Schwartzer for DUI. See Trial Court Opinion, 

1/25/16 at 4 (noting that the recording of the incident did not convince the 

court that Schwartzer slurred his speech and that Schwartzer could have 

been engaged in lawful conduct despite consuming alcohol, smelling like 

alcohol, and having bloodshot eyes). As noted above, the trial court 

improperly reweighed Officer O’Neill’s testimony in deciding Schwartzer’s 

Post-Sentence Motion. See Marquez, 980 A.2d at 147-48. Furthermore, 

the fact that there could be other explanations for the smell of alcohol or 
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bloodshot eyes does not render Officer O’Neill’s decision to arrest Schwartzer 

for DUI unreasonable or illegal. See Salter, 121 A.3d at 994 (noting that 

“[p]robable cause does not require certainty, but rather exists when 

criminality is one reasonable inference, not necessarily even the most likely 

inference.”) (citation omitted). For the foregoing reasons, we conclude 

Officer O’Neill had probable cause to conduct a traffic stop, and for arresting 

Schwartzer under suspicion of DUI. See id. at 995-98 (concluding that 

officer had probable cause to arrest appellant for DUI where appellant had 

glassy eyes, had an odor of alcohol, admitted that she had two glasses of 

alcohol, and performed poorly on the field sobriety tests); see also id. at 

996 (stating that “[f]ield sobriety tests are generally accepted methods for 

ascertaining alcohol or drug impairment at the time of a traffic stop.”) 

(citation and quotation marks omitted).

Based upon the foregoing, we reverse the trial court’s Order granting 

Schwartzer’s Post-Sentence Motion. We further direct the trial court to 

reinstate the initial verdict and sentence.

Order reversed. Case remanded for reinstatement of guilty verdict 

and sentence. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2016