J-A02025-18

2018 PA Super 81

COMMONWEALTH OF PENNSYLVANIA

v.

ALEXANDER JAMES CALABRESE

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 261 WDA 2017

Appeal from the Judgment of Sentence January 30, 2017

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

No(s): CP-02-CR-0009180-2016

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

OPINION BY OLSON, J.: FILED APRIL 06, 2018

Appellant, Alexander James Calabrese, appeals from the judgment of

sentence entered on January 30, 2017, following his bench trial convictions

for driving under the influence of alcohol (DUI) and a summary motor

vehicle code violation of following too closely.1 We affirm.

We briefly summarize the facts and procedural history of this case as

follows. On May 14, 2016, in Robinson Township, Pennsylvania, Officer

Scott Patton witnessed Appellant driving at a high rate of speed, almost

striking the vehicle in front of him. As a result, Officer Patton executed a

traffic stop for following too closely. Officer Patton could smell a strong

odor of alcohol from the vehicle. Appellant admitted that he had just come

from a bar where he consumed a beer and a shot or two. Appellant

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1 75 Pa.C.S.A. §§ 3802(a)(1) and 3310, respectively.
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displayed bloodshot and glassy eyes and his speech was slurred. Officer

Patton asked Appellant to get out of the car and requested that he perform

field sobriety tests. Officer Patton concluded that Appellant was incapable of

safely operating the vehicle, so he arrested him for DUI. The

Commonwealth charged Appellant with the aforementioned crimes.

On November 22, 2016, Appellant filed an omnibus pre-trial motion

alleging, inter alia, that police lacked probable cause to believe Appellant

committed a motor vehicle code violation. Accordingly, Appellant argued

that police instituted an illegal traffic stop and, therefore, the subsequent

evidence police recovered required suppression. The trial court held a

suppression hearing on December 16, 2016 and denied relief. Immediately

thereafter, Appellant proceeded to a stipulated non-jury trial wherein the

trial court found Appellant guilty of DUI and following too closely. This

timely appeal resulted.2

On appeal, Appellant presents the following issue for our review:

A. Did Officer Scott Patton of the Robinson Police Department

have sufficient probable cause to stop [Appellant’s] vehicle for

the offense of [f]ollowing [t]oo [c]losely?

Appellant’s Brief at 4. ____________________________________________

2 Appellant filed a notice of appeal on February 8, 2017. On the same day,

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

timely, filing an original 1925(b) statement, as well as an amended one.

The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on June 2,

2017.
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Appellant claims that the Commonwealth failed to prove that police

had probable cause to believe he committed a motor vehicle code violation,

specifically following too closely pursuant to 75 Pa.C.S.A. § 3310(a), in order

to conduct a valid traffic stop. Appellant’s Brief at 12-22. Appellant relies

principally on a decision from the Court of Common Pleas, Commonwealth

v. Samuel, 1995 WL 520694 (Pa.Com.Pl. 1995), for the proposition that

“the purpose of Section 3310 is to prevent accidents by requiring a driver to

have his vehicle under such control that he or she can stop or maneuver

safely if the vehicle in front stops or swerves unexpectedly.” Id. at 12. He

claims that the facts of this case established that Appellant “was in complete

control of his vehicle.” Id. at 14. Appellant further argues that the evidence

presented “focused solely on the distance” observed between the two

vehicles without regard to “traffic conditions at the time, the weather

conditions, or the condition of” the road. Id. at 15. He also suggests that

because he was not cited with speeding and “[s]ince Officer Patton provided

such a generic description of speeding and did not articulate any specific

facts to even approximate [] speed, his testimony cannot serve as a basis

for a violation and cannot be considered in the probable cause analysis.” Id.

at 14. Further, Appellant asserts that Officer Patton’s testimony was not

credible, because he did not indicate in the police report that he believed

Appellant “was going to strike the rear of the other vehicle.” Id. at 19. In

the alternative, Appellant claims that if Appellant “was in fact following too
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closely, his actions were only momentary and [a] minor deviation that did

not justify stopping his vehicle.” Id. at 22.

Our standard of review is as follows:

An appellate court's standard of review in addressing a challenge

to the denial of a suppression motion is limited to determining

whether the suppression court's factual findings are supported

by the record and whether the legal conclusions drawn from

those facts are correct. Because the Commonwealth prevailed

before the suppression court, we may consider only the evidence

of the Commonwealth and so much of the evidence for the

defense as remains uncontradicted when read in the context of

the record as a whole. Where the suppression court's factual

findings are supported by the record, the appellate court is

bound by those findings and may reverse only if the court's legal

conclusions are erroneous. Where ... the appeal of the

determination of the suppression court turns on allegations of

legal error, the suppression court's legal conclusions are not

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

the suppression court properly applied the law to the facts. Thus,

the conclusions of law of the courts below are subject to plenary

review.

Commonwealth v. Shaffer, 177 A.3d 241, 243–244 (Pa. Super. 2017)

(citation and brackets omitted). “For a stop based on the observed violation of the Vehicle Code or

otherwise non-investigable offense, an officer must have probable cause to

make a constitutional vehicle stop.” Commonwealth v. Harris, 176 A.3d

1009, 1019 (Pa. Super. 2017) (citation omitted).

Our Supreme Court has defined probable cause as follows:

Probable cause is made out when the facts and circumstances

which are within the knowledge of the officer at the time of the

stop, and of which he has reasonably trustworthy information,

are sufficient to warrant a man of reasonable caution in the

belief that the suspect has committed or is committing a crime.
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The question we ask is not whether the officer's belief was

correct or more likely true than false. Rather, we require only a

probability, and not a prima facie showing, of criminal activity.

In determining whether probable cause exists, we apply a

totality of the circumstances test.

Commonwealth v. Martin, 627 Pa. 623, 101 A.3d 706, 721 (2014)

(citation omitted) (emphasis in original). “Pennsylvania law makes clear

that a police officer has probable cause to stop a motor vehicle if the officer

observes a traffic code violation, even if it is a minor offense.” Harris, 176

A.3d at 1019 (citation omitted).

Section 3310(a) of the Motor Vehicle Code provides:

The driver of a motor vehicle shall not follow another vehicle

more closely than is reasonable and prudent, having due regard

for the speed of the vehicles and the traffic upon and the

conditions of the highway.

75 Pa.C.S.A. § 3310(a). We have previously determined that a police

officer’s observations, standing alone, are legally sufficient to stop a vehicle

for a violation of Section 3310(a). See Commonwealth v. Bybel, 779

A.2d 523, 524 (Pa. Super. 2001), citing Commonwealth v. Phinn, 761

A.2d 176, 180 (Pa. Super. 2000).

Our decisions in Bybel and Phinn are instructive herein.3In Phinn, police observed Phinn “traveling less than a motorcycle-length distance

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3 While those cases dealt with the sufficiency of the evidence under Section

3310(a), we find them persuasive because they outline conduct that

supports a conviction for following too closely. Since the facts of those cases

were sufficient to convict, those same facts, when observed by a police

officer, would be sufficient to institute a traffic stop under the probable cause

standard enunciated above. Moreover, in Phinn, our Court specifically

(Footnote Continued Next Page)
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behind a tractor-trailer on Interstate 80 where the vehicles' respective rates

of speed were at or near the speed limit for that highway.” Phinn, 761 A.2d

at 180. We reasoned that, “the evidence clearly bespeaks a hazard within

the contemplation of Section 3310(a).” Id. In Bybel, this Court was called

upon to determine “[w]hether evidence of the proximity of [Bybel’s] vehicle

to the tractor trailer, alone, was sufficient to support a conviction under

Section 3310(a).” Bybel, 779 A.2d at 524. In that case, a state trooper

observed a vehicle traveling around sixty-five miles per hour, the posted

speed limit, and approximately two to three feet behind a truck and testified

that the vehicle could not have avoided a collision if the truck had stopped

suddenly. Id. at 524–525. We concluded that Bybel “defied reason and

prudence when she followed so very closely at such a high rate of speed.” Id. at 525.

In this case, the suppression court determined that “[t]he

uncontradicted testimony of Officer Patton established that [Appellant’s]

vehicle approached the vehicle directly in front of it and was so close in

proximity that the officer thought there was going to be an accident.” Trial

Court Opinion, 6/2/2017, at 5. Upon review of the record and applicable

law, we agree that this testimony was sufficient to establish probable cause

(Footnote Continued) _______________________ disavowed reliance on Samuel, cited by Appellant herein, because the Court

of Common Pleas is not binding precedent upon this Court. See Phinn, 761

A.2d at 180 (“Samuel holds no precedential value beyond law of the case as

to the parties directly involved.”).
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to stop Appellant for following too closely. Officer Patton testified that he

first observed Appellant driving “at a high rate of speed” and that Appellant

“got on the tail of another vehicle in front of [him.]” N.T., 12/16/2016, at 7.

Officer Patton further testified, “I almost thought that [Appellant’s] vehicle

was going to hit the back of the other vehicle. That's how close it came.”

Id. He thought Appellant’s driving was “dangerous” and there could have

been an accident. Id. at 7-8.

Based on the record established at Appellant’s suppression hearing, we

conclude there was probable cause to believe that Appellant was following

another vehicle more closely than was reasonable and prudent. Moreover,

although Appellant did not receive a speeding violation, there was evidence

that Appellant quickly approached the vehicle in front him and got

dangerously close to it while following behind. The plain language of the

Motor Vehicle Code requires a driver to have due regard for the speed of the

vehicles and the traffic of the highway. Thus, we reject Appellant’s

suggestion that the trial court erred in considering testimony about

Appellant’s speed in addressing the probable cause analysis. For all of the

foregoing reasons, we believe there was probable cause for police to conduct

a traffic stop and to issue a citation for a violation of Section 3310(a) of the

Motor Vehicle Code. Hence, suppression was unwarranted.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2018