J.S07038/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellee

v.

CHARLES E. GARDNER, JR.

 Appellant No. 351 MDA 2015

Appeal from the Judgment of Sentence January 20, 2015

In the Court of Common Pleas of Cumberland County

Criminal Division at No(s): CP-21-CR-0001541-2013

BEFORE: BOWES, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 11, 2016

Appellant, Charles E. Gardner, Jr., appeals from the January 20, 2015 

judgment of sentence of seventy-two hours to six months of incarceration 

entered in Cumberland County following his convictions for driving under the 

influence-general impairment (“DUI”),1 DUI-high rate of alcohol,2 DUImetabolite,3

and DUI-combined influence.4 Appellant contends the trial 

court erred in denying his pre-trial motion to suppress evidence. We affirm. 

 

*Former Justice specially assigned to the Superior Court. 

1 75 Pa.C.S. § 3802(a)(1).

2 75 Pa.C.S. § 3802(b).

3 75 Pa.C.S. § 3802(d)(1)(iii). 

4 75 Pa.C.S. § 3802(d)(3).
J-S07038-16

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We summarize the factual and procedural background of this case as 

follows. On February 1, 2013, at approximately 11:45 p.m., Officer Keith 

Morris, of the East Pennsboro Township Police Department, was traveling in 

an unmarked police car behind Appellant’s vehicle. N.T. Suppression Hr’g, 

2/18/14, at 3-7. As Officer Morris followed Appellant, he observed 

Appellant’s vehicle, “drift to the left over the yellow line” and quickly hit his 

brakes. Id. at 6. Officer Morris then twice witnessed Appellant’s car “drift[] 

well to the right side of the road.” Id. Appellant continued to a red light 

and turned right; at which time, Officer Morris observed Appellant’s vehicle 

come into contact with the line. Id. at 6-7. Officer Morris next observed 

Appellant’s vehicle “actually cross[] over the yellow line” while an oncoming 

vehicle was traveling toward Appellant. Id. at 7. Based on these 

observations, Officer Morris initiated a traffic stop. Id. Officer Morris 

conducted field sobriety tests and determined Appellant was incapable of 

safely operating his vehicle. N.T. Trial, 10/15/14, at 16-19. 

Prior to trial, Appellant filed a motion to suppress evidence based on a 

lack of reasonable suspicion or probable cause to effectuate a traffic stop. 

The trial court held a suppression hearing on February 18, 2014. On March 

20, 2014, the trial court issued an order and accompanying opinion denying 

Appellant’s motion. The trial court included in its opinion the following 

findings of fact and conclusions of law.

1. Officer Keith Morris is employed by the East 

Pennsboro Township Police Department and has 
J-S07038-16

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been so employed for twelve years. He has had 

training in detecting drivers who may be under the 

influence of alcohol or drugs, including yearly 

updates with field sobriety and advanced roadside 

impairment detention class.

2. Officer Morris was working on the evening of 

February 1, 2013, in an unmarked police vehicle 

equipped with a video camera.

3. Officer Morris pulled [Appellant] over on 

February 1, 2013, shortly before midnight.

4. Officer Morris first saw [Appellant’s] vehicle 

while he was traveling northbound on North Enola 

Drive.

5. As he followed [Appellant], Officer Morris 

observed the vehicle cross over or touch the yellow 

line with its tires in the area of Cumberland Road and 

North Enola Drive.

6. Officer Morris then observed the vehicle 

negotiate an s-curve in the roadway. During the first 

part of the turn, he saw the vehicle drift to the left 

and cross over the double yellow line a second time.

7. As the vehicle proceeded through the scurve, Officer Morris observed the vehicle execute a 

quick unexplainable braking action. Officer Morris 

stated this as unusual because the vehicle was not 

driving at an excessive rate of speed and with the 

nature of the s-curve being uphill, a driver would 

need to accelerate through the turn and not use the 

brakes unless he was starting to drift to the other 

side of the road.

8. As the vehicle travelled through the last part 

of the s-curve, which was a left-hand curve, Officer 

Morris saw the vehicle drift well to the right side of 

the road.

9. Officer Morris continued to follow the vehicle 

northbound on North Enola Drive and saw the vehicle 
J-S07038-16

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drift to the very far right side of the road after the 

vehicle crossed through the intersection at East 

Columbia Road. Officer Morris stated that the 

vehicle drifted so far to the right it was in an area on 

the roadway where cars are allowed to park. If a car 

had been parked there, [Appellant’s] vehicle would 

have struck it.

10. The video recording from Officer Morris’s 

vehicle clearly shows [Appellant’s] vehicle drift to the 

far right after the intersection at North Enola Drive 

and East Columbia Road.

11. [Appellant] then made a right turn onto 

Shady Lane; and as he does so, Officer Morris 

observed the driver’s side tires come into contact 

with the yellow line a third time.

12. There is no separate right hand turn lane 

to turn onto Shady Lane. Officer Morris noted it was 

highly unusual that [Appellant’s] vehicle would be so 

far to the right prior to turning onto Shady Lane.

13. There is no berm line or shoulder area on 

North Enola Drive in the vicinity of Shady Lane. 

There is a standard curb on North Enola Drive, and 

[Appellant’s] vehicle was so far to the right that it 

came close to striking the curb.

14. As the vehicle continued eastbound on 

Shady Lane, Officer Morris witnessed the vehicle 

cross over the double yellow line a fourth time into 

the lane of opposing traffic by a half to full tire width. 

As [Appellant’s] vehicle crossed over this double 

yellow line separating opposing lanes of traffic, there 

was an oncoming vehicle travelling westbound 

toward [Appellant’s] vehicle.

15. The video clearly shows [Appellant’s] 

vehicle cross the double yellow line on Shady Lane 

while oncoming vehicles approached.
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16. Officer Morris had probable cause to make 

a traffic stop for a violation of 75 Pa.C.S.A. § 3309 –

Driving on Roadways Laned for Traffic.

17. After making all the above observations, 

given the totality of the circumstances, Officer Morris 

had reasonable suspicion to believe that something 

was medically wrong with the driver of the vehicle or 

that the driver was under the influence of alcohol 

which impaired his ability to safely drive the motor 

vehicle and that additional investigation was 

warranted.

Trial Ct. Op., 3/20/14, at 1-4.

Appellant proceeded to a non-jury trial on October 15, 2014. At the 

conclusion of the trial, Appellant was convicted of the above crimes. The 

trial court sentenced him on January 20, 2015. Appellant filed a motion for 

reconsideration of his sentence on January 27, 2015, and the trial court 

denied said motion on February 3, 2015.5 Appellant filed a timely notice of 

appeal on February 25, 2015. The trial court ordered Appellant to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). Appellant complied, and the trial court filed a responsive Rule 

1925(a) opinion.

On appeal, Appellant raises the following issue for our review. 

 

5 We note that both Appellant and the Commonwealth suggest in their 

respective briefs that Appellant’s appeal lies from the February 3, 2015 order 

denying Appellant’s post-sentence motion. However, Appellant’s notice of 

appeal correctly indicates the appeal lies from the January 20, 2015 

judgment of sentence, made final by the denial of his post-sentence motion. 

See Commonwealth v. Kuykendall, 2 A.3d 559, 560 n.1 (Pa. Super. 

2010). 
J-S07038-16

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Did the trial court err when it denied Appellant’s 

omnibus pretrial motion to suppress evidence?

Appellant’s Brief at 5. 

Appellant argues there was no probable cause or reasonable suspicion 

to justify the vehicle stop because “[t]he video from Officer Morris’ patrol 

vehicle did not clearly show Appellant crossing the yellow line on the left (2 

to 3 times).” Appellant’s Brief at 10. He continues that he did not strike the 

curb on the right side of the road, and he made a legal right turn without 

placing pedestrians in any danger. Id. Therefore, “[t]he evidence 

presented did not establish that the officer had probable cause [or 

reasonable suspicion] to stop Appellant’s vehicle.” Id. For the following 

reasons, we conclude Appellant is due no relief. 

We first must ascertain if Appellant has properly preserved his 

argument. We note, with disapproval, that with the exception of a short 

statement outlining this Court’s standard of review, Appellant’s entire 

argument is devoid of citations to or discussion of legal authority in support 

of his position. See Appellant’s Brief at 9-10. Instead, Appellant merely 

provides a brief summary of Officer Morris’ testimony and challenges his 

credibility.6 See id. Absent from Appellant’s brief is any meaningful 

 

6 We remind Appellant, “it [is] for the trier of fact to determine the weight of 

the evidence and the credibility of the witnesses. . . . This Court may not 

weigh the evidence or substitute its judgment [f]or that of the factfinder.” 

Commonwealth v. Devries, 112 A.3d 663, 667 (Pa. Super. 2015) 

(citations omitted). 
J-S07038-16

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discussion of either the probable cause or reasonable suspicion standard. 

See id. 

In an appellate brief, parties must provide an 

argument as to each question, which should include 

a discussion and citation of pertinent authorities. 

This Court is neither obliged, nor even particularly 

equipped, to develop an argument for a party. To do 

so places the Court in conflicting roles of advocate 

and neutral arbiter. When an appellant fails to 

develop his issue in an argument and fails to 

cite any legal authority, the issue is waived.

In re S.T.S., J.R., 76 A.3d 24, 42 (Pa. Super. 2013) (citations omitted and 

emphasis added), appeal denied, 91 A.3d 163 (Pa. Super. 2014).

As noted, Appellant wholly failed to include any citation to legal 

authority or pertinent discussion in support of his argument, with the 

exception of one citation to the standard of review. Appellant’s Brief at 9-

10. Therefore, we conclude Appellant has waived review of his sole 

challenge on appeal. See In re S.T.S., J.R., 76 A.3d at 42. 

Assuming, however, Appellant had not waived his challenge, we are 

mindful that the following principles apply over challenges to suppression 

orders.

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. . . . Where the 

record supports the factual findings of the 

suppression court, we are bound by those facts and 

may reverse only if the legal conclusions drawn 

therefrom are in error. . . . [T]he conclusions of law 
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of the suppression court are subject to plenary 

review.

Commonwealth v. Salter, 121 A.3d 987, 992 (Pa. Super. 2015) (citation 

omitted). 

Specifically, in the context of traffic stops, the level of suspicion 

requires is codified as follows. 

Whenever a police officer is engaged in a systematic 

program of checking vehicles or drivers or has 

reasonable suspicions 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). 

However, this Court has expounded that in some instances, probable 

cause is the correct standard. 

[W]hen 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 to make the stop. Illustrative 

of these two standards are stops for . . . DUI. . . . 

[I]f an officer possesses sufficient knowledge 

based upon behavior suggestive of DUI, the 

officer may stop the vehicle upon reasonable 
J-S07038-16

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suspicion of a Vehicle Code violation, since a stop 

would provide the officer the needed opportunity to 

investigate further if the driver was operating under 

the influence of alcohol or a controlled substance. 

Commonwealth v. Ibrahim, ___ A.3d ___, ___ 2015 WL 6777602, at *4 

(Pa. Super. 2015) (citation omitted and emphases added).

Instantly, had Appellant not waived review of this issue, we would 

conclude that the trial court’s analysis in its Rule 1925(a) opinion addressing 

Appellant’s issue is in accord with our views, and we would adopt its 

reasoning. See Trial Ct. Op. 5/4/15, at 4-6. Specifically, the trial court 

concluded that Officer Morris (1) had probable cause to initiate a traffic stop 

based Appellant’s violation of 75 Pa.C.S. § 3309(1), and (2) possessed 

sufficient reasonable suspicion that Appellant was driving under the 

influence. See id. Thus, the stop was legal, and we discern no basis to 

reverse. See Ibrahim, ___ A.3d at ___, 2015 WL6777602 at *4; Salter, 

121 A.3d at 992. 

Based on the foregoing discussion, we conclude Appellant is not 

entitled to relief on his claim, and we discern no error in the trial court’s 

ruling. Accordingly, we affirm his judgment of sentence.

Judgment of sentence affirmed. 
J-S07038-16

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/2016
':; 

1Concise Statement of the Errors Complained of on Appeal, filed March 17, 2015 

2014. Defendant's Motion for Suppression of Evidence was denied on March 20, 2014. 

vehicle. A hearing on the Motion for Suppression of Evidence was held on February 18, 

where he argued that there was no probable cause or reasonable suspicion to stop.his 

. 1_:··_; ) 

Defendant filed a Motion for Suppression of Evidence on September 18, 2013; 

Procedural History 

2. The evidence presented by the Commonwealth was not sufficient to , ' 

convict Mr. Gardner of the above-captioned charges.1 : , · ' 

1. The Trial Court erred in denying Mr. Gardner's Omnibus Pre-Trial 

Motion to Suppress. Specifically, the Commonwealth failed to establish 

that Officer Morris had sufficient probable cause to pull over the vehicle 

that was being operated by Mr. Gardner in East Pennsboro Township. 

Additionally, the Commonwealth failed to establish that Officer Morris had 

reasonable suspicion to believe that criminal activity was afoot. 

specifically appeals the following errors: 

conviction of the above-captioned offenses following a non-jury trial. Defendant 

Charles E. Gardner, Jr., Defendant in the above-captioned case, appeals his 

Ebert, J. - May 4, 2015 - 

IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 

: CHARGES: (1) DUI-GEN. IMP. (1st); (2) DUI- 

: HIGH RATE (1st); (3) DUI-CONTROLLED 

: SUBSTANCE (1st); (4) DUI-COMBINATION 

: (1st) 

: AFFIANT: PTL. KEITH W. MORRIS 

CHARLES E. GARDNER, JR. 

OTN: L762526-2 

v. 

: IN THE COURT OF COMMON PLEAS OF 

: CUMBERLAND COUNTY, PENNSYLVANIA 

: CP-21-CR-1541-2013 

COMMONWEAL TH 

Circulated 01/12/2016 11:42 AM
2 

2 Notes of Testimony, In Re: Non-Jury Trial, 13, Oct. 15, 2014 (hereinafter N.T. at_) 

3 N.T. at 13-14 

4 N.T. at 15 

physical movements were slow and his voice was slow, slurred, and raspy.4 

leaving his friend's house. During this interaction, Officer Morris stated that Defendant's 

had four beers at a friend's house and that he had finished his last beer just prior to 

then asked Defendant about his whereabouts that evening. Defendant admitted that he 

speech was slurred. Defendant then provided his driving information to Officer Morris 

and continued to remain outside the vehicle talking to Officer Morris.3 Officer Morris 

testified that he immediately detected the odor of alcohol and noticed that Defendant's 

Defendant got out of the vehicle and began talking to Officer Morris. Officer Morris 

After observing Defendant's driving, Officer Morris initiated a stop of Defendant in 

the parking lot of an apartment complex off of Beaver Avenue.2 After he was stopped, 

incorporated fully herein. 

February 1, 2013, before he initiated a stop of Defendant's vehicle. This Opinion is 

observations Officer Keith Morris made of Defendant's driving on the evening of 

Motion for Suppression of Evidence, dated March 20, 2014. These facts include the 

This Court made detailed findings of fact in this case in its prior opinion In Re: 

Statement of Facts 

which was denied by Order of Court on February 3, 2015. This appeal followed. 

Prison. Defendant filed a Motion for Modification of Sentence on January 27, 2015, 

sentenced on January 20, 2015, to serve 72 hours to 6 months in Cumberland County 

this Court found Defendant guilty of the above-captioned DU I offenses. Defendant was 

A non-jury trial was held on October 15, 2014. After the conclusion of testimony, 
3 

5 N.T. at 16 

6 N.T. at 6 

7 N.T. at 16-17 

8 N.T. at 18 

9 N.T. at 19-20 

10 N.T. 20 

consent to draw blood for testing. Defendant's blood was drawn within two hours of him 

Officer Morris then took Defendant to the booking center and obtained his 

about the marijuana. Defendant admitted to smoking marijuana within hours of being 

pulled over." 

jacket. Officer Morris then advised Defendant of his Miranda rights and asked him 

searching Defendant incident to arrest, Officer Morris found a marijuana pipe in his 

the odor of alcohol, the displaying of intoxication, the signs of intoxication he displayed 

while performing [field sobriety tests], and [his] years of experience and training".9 After 

[Defendant], from seeing his driving on North Enola Drive, to his admission of drinking, 

was incapable of safe driving due to " ... the whole totality of {his] interactions with 

Officer Morris then placed Defendant in custody because he felt that Defendant 

putting it back on the ground after each number. Officer Morris had to stop the test for 

Defendant's safety since he could not keep his balance.8 

perform the one-legged stand test. Defendant could not keep his leg up and kept 

After explaining the test to Defendant, he saw that Defendant was unsteady on his feet 

and had to separate his feet to keep his balance. 7 Officer Morris next had Defendant 

Officer Morris then asked Defendant if he would be willing to perform field 

sobriety tests and Defendant agreed.5 Officer Morris is certified in conducting field 

sobriety testing.6 First Officer Morris had Defendant perform the walk and turn test. 
4 

11 N.T. at 30; Com. Ex. 1 

12 N.T. at 30-31; Com. Ex. 2 

13 N.T. at 31 

Commonwealth v. Page, 965 A.2d 1212, 1217 (Pa. Super. 2009)(internal citations 

omitted). 

[The appellate court's] standard of review of a denial of a suppression is 

whether the record supports the trial court's factual findings and whether 

the legal conclusions drawn therefrom are free from error. [The appellate 

court's] scope of review is limited; [the appellate court] may consider only 

the evidence of the prosecution 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 record supports the findings of the suppression 

court, {the appellate court is] bound by those facts and may reverse only if 

the court erred in reaching its legal conclusions based upon the facts. 

settled and is as follows: 

The standard of review following the denial of a suppression motion is well 

for Officer Morris to stop Defendant. This Court did not err. 

of Evidence because there was not sufficient probable cause or reasonable suspicion 

Defendant first argues that this Court erred in denying his Motion for Suppression 

I. Suppression 

Discussion 

substances.13 

Pennsylvania Department of Health's threshold limits for minimum levels of controlled 

Defendant was found to have 14 nanograms of Delta 9 carboxy THC and 1 nanogram 

of Delta 9 THC.12 Both of these levels were at or above the levels required by the 

driving. After testing, Defendant's BAC was determined to be .157.11 Additionally, 
5 

Here, Officer Morris clearly articulated at the suppression hearing that he 

observed several instances where Defendant's vehicle violated 75 Pa.C.S.A § 3309(1). 

He saw Defendant's vehicle touch or cross over the double yellow line on four separate 

occasions. On one of those occasions, he observed Defendant's vehicle over the 

center yellow line by a half to full tire width while there was oncoming traffic. He also 

stated he saw Defendant drive to the extreme right of the roadway before making a right 

hand turn, where there was no turning lane. These observations were clearly 

articulated by Officer Morris at the suppression hearing and indicate there was probable 

cause to stop Defendant's vehicle for a violation of 75 Pa.C.S.A. § 3309(1). See 

Commonwealth v. Klopp, 863 A.2d 1211, 1214-15 (Pa. Super. 2004) (finding probable 

cause existed when officer observed vehicle for 1.6 miles and saw the vehicle weaving 

Again, this Court's prior Opinion dated March 20, 2014, detailing the reasoning 

behind the denial of Defendant's Motion for Suppression of Evidence is fully 

incorporated herein. 

To reiterate from this Court's prior opinion, probable cause to stop a vehicle for a 

traffic violation exists when the officer is able to articulate specific facts at the time of the 

stop which would lead a reasonable person to believe that it is more probable than not 

that a violation of the Motor Vehicle Code has occurred. Commonwealth v. Lindblom, 

854 A.2d 604, 607 (Pa. Super. 2004). Probable cause for a violation of 75 Pa.C.S.A. § 

3309(1 ), driving on roadways laned for traffic, depends on whether the driver's 

movements are done safely. Commonwealth v. Cook, 865 A.2d 869, 874 (Pa. Super. 

2004). 
6 

The standard [appellate courts] apply in reviewing the sufficiency of 

evidence is whether, viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence to enable 

the factfinder to find every element of the crime beyond a reasonable 

doubt. In applying the above test, [appellate courts] may not weigh the 

evidence and substitute [their] judgment for that of the fact-finder. In 

addition, we note that the facts and circumstances established by the 

Commonwealth need not preclude every possibility of innocence. Any 

doubts regarding a defendant's guilt may be resolved by the fact-finder 

unless the evidence is so weak and inconclusive that as a matter of law no 

including a bench trial, is well settled. 

The standard for reviewing the sufficiency of the evidence presented at trial, 

find Defendant guilty of the four above-captioned charges beyond a reasonable doubt. 

conviction at his bench trial. There was sufficient evidence presented for this Court to 

Defendant next argues that there was not sufficient evidence to support his 

II. Sufficiency of the Evidence 

Suppression of Evidence. 

suspicion to stop Defendant and this Court did not err in denying Defendant's Motion for 

There was clear evidence that Officer Morris had both probable cause and reasonable 

an s-curve, where typically a car would need to accelerate because the curve is uphill. 

Officer Morris saw Defendant brake quickly and unexplainably while traveling through 

Sands, 887 A.2d 261, 272 (Pa. Super. 2005). In addition to the above observations, 

under the influence and more investigation was required. See Commonwealth v. 

Morris was able to state specific and articulable facts that Defendant might be driving 

sufficient reasonable suspicion to stop Defendant for suspected DUI. Here, Officer 

In addition to having probable cause to stop Defendant, Officer Morris had 

with oncoming traffic). 

side to side four times, crossing the double yellow and fog lines, and once interfering 
7 

observed Defendant's weaving while he was driving. At one point he saw Defendant's 

person present in the vehicle after Officer Morris conducted a traffic stop. Officer Morris 

reasonable doubt. There was no doubt Defendant was driving, as he was the only 

In this case, the Commonwealth proved all four counts of DUI beyond a 

these elements beyond a reasonable doubt. 

impaired his ability to safely operate a vehicle. The Commonwealth must prove all 

combined influence of alcohol and a drug, or combination of drugs, to a degree which 

DUI-Combination, the Commonwealth had to establish that Defendant was under the 

metabolite of a Schedule I, II, or Ill drug. 75 Pa.C.S.§ 3802(d)(1 )(iii). And finally, for 

Controlled Substance, the Commonwealth had to prove that Defendant's blood had any 

Defendant's BAC was between 0.10 and 0.16. 75 Pa.C.S. § 3802(b). For DUIPa.C.S. § 3802(a)(1). For DUI-High Rate, the Commonwealth had to prove that 

Commonwealth had to establish that Defendant was incapable of safe driving. 75 

vehicle. In order to show Defendant was guilty of DUI-General Impairment, the 

DU I counts the Commonwealth had to establish that Defendant was operating a motor 

the influence ("DUI"). Defendant was charged with four different counts of DUI. For all 

Here, there was more than sufficient evidence that Defendant was driving under 

and quotations omitted). 

Commonwealth v. Johnson, 833 A.2d 260, 262-63 (Pa. Super. 2003) (internal citations 

probability of fact may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every element of the 

crime beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record must be 

evaluated and all evidence actually received must be considered. Finally, 

the trier of fact while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part or none of the 

evidence. 
8 

r-p.,.:, .. ,, c·l·~,,,18 _1 MAY 05 2015 

,.AJ· »es H·~.,, fOl ~ ·--············-----·-·······--··············.,··- 

Arla M. Waller, Esquire 

Deputy Public Defender 

District Attorney's Office 

By the Court, 

Defendant's blood draw, that Defendant was guilty of four counts of DUI. 

there was more than sufficient evidence, especially given the lab results from 

was no error in denying Defendant's Motion for Suppression of Evidence. Additionally, 

and had both probable cause and reasonable suspicion to pull Defendant over. There 

Officer Morris was able to articulate specific observations of Defendant's driving 

Conclusion 

offenses. 

error in this Court, as fact-finder, finding Defendant guilty of the above-captioned 

was .157 and that THC was present. Based on all of the above evidence, there was no 

evening. Most importantly, the lab work for Defendant's blood indicated that his BAC 

started driving. Defendant also admitted to smoking marijuana before driving that 

Defendant admitted that he drank four beers, the most recent one right before he 

and turn or the one-legged stand field sobriety tests satisfactorily. Additionally, 

and could not maintain his balance. Defendant was unable to perform either the walk 

noticed an odor of alcohol on Defendant and that Defendant was slurring his speech 

vehicle in the opposite lane of traffic while there was an oncoming vehicle. He also 
,·, ·,r,i.eB mslled Oil~--- 

""'1 MAR 2 0 20'14 

Jeffrey Cook, Esquire 

Attorney for Defendant 

John C. Dailey, Esquire 

District Attorney's Office ' . 

I 

. 1 

\\ . ') 

MAR 2 0 2014 

By the Court, 

Suppression of Evidence is DENIED. 

IT JS HEREBY ORDERED AND DIRECTED that the Defendant's Motion for 

Motion for Suppression of Evidence and after hearing on February 19, 2014; 

AND NOW, this 201h day of March, 2014, upon consideration of Defendant's 

ORDER OF COURT 

IN RE: MOTION FOR SUPPRESSION OF EVIDENCE 

: AFFIANT: PTL. KEITH W. MORRIS 

: CHARGES: (1) DUI, GENERAL 

: IMPAIRMENT; (2) DUI, HIGH RATE; (3) DUI, 

: CONTROLLED SUBSTANCE; (4) DUI, 

: COMBINATION; (5) UNLAWFUL 

: POSSESSION OF SCHEDULE I, 

: CONTROLLED SUBSTANCE; 

: (6) UNLAWFUL POSSESSION OF DRUG 

CHARLES E. GARDNER, JR. :PARAPHERNALIA 

OTN: L762526 - 2 

v. : CP -21 - CR - 1541 - 2013 

: IN THE COURT OF COMMON PLEAS OF 

: CUMBERLAND COUNTY, PENNSYLVANIA 

COMMONWEAL TH 
1 

1 Notes of Testimony, In Re: Hearing on a Motion to Suppress, Feb. 18, 2014, 4 (hereinafter "N. T. at_") 

detecting drivers who may be under the influence of alcohol or drugs, including yearly 

updates with field sobriety and advanced roadside impairment detection class .1 

Department and has been so employed for twelve years. He has had training in 

1. Officer Keith Morris is employed by the East Pennsboro Township Police 

I. Findings of Fact 

suspicion for Officer Keith Morris to initiate a traffic stop of Defendant's vehicle. 

discussed below, this Court finds that there was probable cause and reasonable 

Suppression of Evidence. A hearing was held on February 19, 2014. For the reasons 

Charles E. Gardner, Jr., Defendant in the above-captioned case filed a Motion for 

Ebert, J., March 20, 2014- 

OPINION AND ORDER OF COURT 

IN RE: MOTION FOR SUPPRESSION OF EVIDENCE 

: AFFIANT: PTL. KEITH W. MORRIS 

: CHARGES: (1) DU( GENERAL 

: IMPAIRMENT; (2} DUI, HIGH RATE; (3) DUI, 

: CONTROLLED SUBSTANCE; (4) DUI, 

: COMBINATION; (5) UNLAWFUL 

: POSSESSION OF SCHEDULE I, 

: CONTROLLED SUBSTANCE; 

: (6) UNLAWFUL POSSESSION OF DRUG 

CHARLES E. GARDNER, JR. : PARAPHERNALIA 

OTN: L762526 - 2 

v. : CP - 21 - CR - 1541 - 2013 

: IN THE COURT OF COMMON PLEAS OF 

: CUMBERLAND COUNTY, PENNSYLVANIA 

COMMONWEAL TH 
2 

2 N.T. at 5 

3 N.T. at 8 

4 N.T. al 5-6 

6 N.T. at 6 

6 N.T. at 6 

7 N.T. at 6 

8 N.T. at 15-16 

g N.T. at6 

8. As the vehicle travelled through the last part of the s-curve, which was a lefthand curve, Officer Morris saw the vehicle drift well to the right side the road.9 

nature of the s-curve being uphHI, a driver would need to accelerate through the tum 

and not use the brakes unless he was starting to. drift to the other side of the road.8 

7. _ As the vehicle proceeded through the s-curve, Officer Morris observed the 

vehicle execute a quick unexplainable braking action.7 Officer Morris stated this was 

unusual because the vehicle was not driving at an excessive rate of speed and with the 

During the first part of the turn, he saw the vehicle drift to the left and cross over the 

double yellow line a second time.6 

6. Officer Morris then observed the vehicle negotiate ans-curve in the roadway. 

touch the double yellow line with its tires in the area of Cumberland Road and North 

Enola Drive.5 

5. As he followed Defendant, Officer Morris observed the vehicle cross over or 

4. Officer Morris first saw Defendant's vehicle while he was travelling northbound 

on North Enola Drive.4 

3. Officer Morris pulled Defendant over on February 1, 2013, shortly before 

midnight.3 

2. Officer Morris was working on the evening of February 1, 2013, in an 

unmarked police vehicle equipped with a video camera.2 
3 

10 N.T. at 6 

11 N.T. at 11; Com. Ex. 1 

12 N.T. at6-7 

13 N.T. at 14 

14 N.T. at 14 

opposing traffic by a half to full tire width. As Defendant's vehicle crossed over this 

14. As the vehicle continued eastbound on Shady Lane, Officer Morris 

witnessed the vehicle cross over the double yellow line a fourth time into the lane of 

Shady Lane. There is a standard curb on North Enola Drive, and the Defendant's 

vehicle was so far to the right that it came close to striking the curb.14 

13. There is no berm line or shoulder area on North Enola Drive in the vicinity of 

Morris noted it was highly unusual that Defendant's vehicle would be so far to the right 

prior to turning onto Shady Lane." 

' . 

12. There is no separate right hand turn Jane to turn onto Shady Lane. Officer 

third time.12 

Officer Morris observed the driver's side tires come into contact with the yellow line a 

11. Defendant then made a right turn onto Shady lane; and as he does so, 

vehicle drift to the far right after the intersection at North Enola Drive and East Columbia 

Road.11 

10. The video recording from Officer Morris's vehicle clearly shows Defendant's 

drifted so far to the right it was in an area on the roadway where cars are allowed to 

park. lf a car had been parked there, the Defendant's vehicle would have struck [t.10 

through the intersection at East Columbia Road. Officer Morris stated that the vehicle 

and saw the vehicle drift to the very far right side of the road after the vehicle crossed 

9. Officer Morris continued to follow the vehicle northbound on North Enola Drive 
4 

15 N.T. at 7 

te N.T. at 11; Com. Ex. 1 

17 N.T. at 8, 17 

1eN.T.at7, 11 

criminality is one reasonable inference not necessarily even the most likely inference." 

Probable cause is not a determination which requires certainty; rather, lt exists "when 

have probable cause. Commonwealth v. Feczko, 10 A.3d 12'85, (Pa. Super. 2010); 

is required, such as a violation of driving on roadways laned for traffic, an officer must 

A. Probable Cause Existed to Stop the Defendant's Vehicle for a Violation of 

Driving on Roadways Laned for Traffic 

In order to initiate. a traffic stop for a traffic offense where no further investigation 

evidence obtained after the traffic stop should be suppressed. 

suspicion to pull him over on February 1, 2013. Therefore, Defendant argues that any 

Defendant argues that Officer Morris had neither probable cause nor reasonable 

II. Discussion 

investigation was warranted.18 

of alcohol which impaired his ability to safely drive the motor vehicle and that additional 

medically wrong with the driver of the vehicle or that the driver was under the influence 

circumstances, Officer Morris had reasonable suspicion to believe that something was 

16. Officer Morris had probable cause to make a traffic stop for a violation of 75 

Pa. C.S.A. § 3309 - Driving on Roadways Laned for Traffic.17 

17. After making all the above observations, given the totality of the 

15. The video clearly shows Defendant's vehicle cross the double yellow line on 

Shady Lane while two oncoming vehicles approach." 

doubte yellow line separating opposing lanes of traffic, there was an oncoming vehicle 

travelling westbound toward Defendant's vehicle.15 
5 

the defendant. Id. at 44. See a/so Commonwealth v. Nelson, 60 Curnb. 331 (2011)(no 

Id. at 42. It was also noted that at no point were there any other vehicles driving near 

berm once and over the center line once, with nothing else unusual about her driving. 

Id. (emphasis in original). In Malone, the defendant was observed crossing into the 

vehicle should be driven as "nearly as practicable entirely within a single marked lane." 

that Officer Morris did not have probable cause to pull him over for a violation of§ 

3309(1). In Commonwealth v. Malone, 19 Pa. D&C 41h 41(C~mb. Co. 1993), Judge 

Bayley stated that§ 3309(1) does not "require perfect adherence to driving entirely 

within a single marked lane on all occasions." Malone, 19 Pa. D&C 4th at 44. Rather, a 

Defendant cites to several Cumberland County cases in support of his argument 

made with safety." 75 Pa.C.S.A. § 3309(1). 

moved from the lane until the driver has first ascertained that the movement can be 

shall be driven as nearly as practicable entirely within a single lane and shall not be 

(Pa. Super. 2004). Section 3309(1) of the Motor Vehicle Code states that, "[a) vehicle 

(Pa. Super. 2004). Probable cause to stop a vehicle for a violation of 75 Pa.C.S.A. 

§ 3309(1), driving on roadways laned for traffic, depends on whether the driver's 

t . 

movement from his lane is done safely." Commonwealth v. Cook, 865 A.2d 869, 874 

the Motor Vehicle Code has occurred. Commonwealth v. Lindblom, 854 A.2d 604, 607 

articulate specific facts possessed by him at the time of the vehicle stop which would 

lead a reasonable person to believe that it is more probable than not that a violation of 

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

Youch, 62 Cumb. 95, 99-100 (2013). Probable cause exists when the officer is able to 
For those traffic offenses, including driving under the influence (hereinafter 

"DUI"), that require more investigation, the officer must be able to relay specific and 

articulable facts that would give rise to a reasonable suspicion that the person is DUI. 

Commonwealth v. Sands, 887 A.2d 261, 272 (Pa. Super. 2005). When considering 

6 

8. Based on the Officer's Observations, He Did Have Reasonable Suspicion 

That the Defendant Was Driving Under the Influence Which Warranted 

Further Investigation 

probable cause to stop when defendant drifted to the left a few times onto the ye/low 

line and took one turn wide while no oncoming traffic was present). 

Defendant also relies on Commonwealth v. Yauch, where it was found that the 

officer did not have probable cause to stop the defendant. In that case, the officer 

observed the defendant drift onto the white fog line and back over to touch the double 

yellow line. Commonwealth v. Yauch, 62 Cumb. 95, 96 (2013). At one point, the officer 

stated that there was oncoming traffic but that no evasive action was required by the 

oncoming drivers nor was defendant's vehicle ever straddling the center lines. & 

This case is clearly different. In this case, Officer Morris did not merely see 

Defendant touch the double yellow line, but he witnessed Defendant touch or cross over 

the yellow line on four occasions, one time by a half to full tire width while there was 

oncoming traffic. While Officer Morris testified he did not see any emergency evasive 

action by the oncoming drivers, it was clear Defendant was in their lane. Additionally, 

Officer Morris saw Defendant's vehicle drive to the extreme right of the roadway before 

turning when no turning lane was present. Officer Morris possessed probable cause 

that a violation of§ 3309(1) occurred and was proper in stopping Defendant's vehicle. 
7 

whether an officer had such reasonable suspicion, due weight must be given "to the 

specific reasonable inferences [he] 1s entitled to draw from the facts in light of his 

experience." Id. (citing Commonwealth v. Rodgers, 849 A.2d 1185, 1189 (Pa. 2004)). 

Officer Morris had reasonable suspicion to pull over Defendant for suspected 

DUI. In addition to the reasons stated above, Officer Morris observed Defendant 

navigate through an s-curve and brake quickly and unexplainably. This struck Officer 

Morris as odd, because this portion of the s-curve was uphill and vehicles not travelling 

at an excessive speed would usually have to accelerate to get up the hill, unless they 

were beginning to drift into other lanes. Clearly, given all of the observations made by 

Officer Morris, it was clear that either something was medically wrong with the driver or 

that he was driving under the influence. Jn either case, Officer Morris was justified in 

conducting a traffic stop in order to do additional investigation. There is little doubt that 

he had reasonable suspicion that the Defendant was driving under the influence. 

Commonwealth v. Feczko, 10 A.3d 1205 (Pa. Super. 2010) 

In this case, Officer Morris did more than merely state he saw Defendant's 

vehicle cross over the yellow line. He provided several specific and articulable 

instances which, when viewed collectively and in light of his twelve years of experience, 

gave him reasonable suspicion to believe that Defendant might be DUI and that more 

investigation was necessary. This Court finds that based on these specific observations 

that reasonable suspicion was present for Officer Morris to stop Defendant for further 

investigation of DUI. 
8 

Jeffrey Cook, Esquire 

Attorney for Defendant 

John C. Dailey, Esquire 

District Attorney's Office 

J. 

By the Court, 

Suppression of Evidence is DENIED. 

IT IS HEREBY ORDERED AND DIRECTED that the Defendant's Motion for 

Motion for Suppression of Evidence and after hearing on February 19, 2014; 

yellow lines on more than one occasion. Therefore, the following order will be entered: 

AND NOW, this 201h day of March, 2014, upon consideration of Defendant's 

traffic stop of Defendant after he witnessed Defendant's vehicle cross over the double 

Officer Morris had both probable cause and reasonable suspicion to initiate a 

Conclusion