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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
FRANKLIN D. SMITH, JR.,                  :          No. 2975 EDA 2015
                                         :
                        Appellant        :


        Appeal from the Judgment of Sentence, September 4, 2015,
            in the Court of Common Pleas of Delaware County
             Criminal Division at No. CP-23-CR-0002706-2015


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 11, 2016

      Franklin D. Smith, Jr., appeals from the judgment of sentence entered

on September 4, 2015, by the Court of Common Pleas of Delaware County

following his conviction in a waiver trial of driving under the influence of

alcohol or controlled substance (“DUI”), operation of vehicles without official

certificate of inspection, and restrictions on alcoholic beverages.1 We affirm.

      The trial court set forth the following factual and procedural history:

                  Officer Matthew Liss is employed with the
            Nether Providence Township Police Department and
            has been so employed as a patrolman for the past
            sixteen years. Over the course of his career as a
            patrolman, Officer Liss has had the opportunity to
            conduct hundreds of arrests for [DUI].



1
  75 Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 4703(a), and 75 Pa.C.S.A.
§ 3809(a), respectively.
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                 On February 8, 2015, in his capacity as a
          patrolman, Officer Liss was working the 7:00 a.m. []
          to 7:00 pm.[] shift. Officer Liss was in uniform and
          operating a marked patrol vehicle.               Around
          3:00 p.m., as Officer Liss was traveling eastbound on
          Brookhaven Road approaching the intersection of
          Rose Valley Road, he observed a blue colored pickup
          truck traveling in the westbound direction on
          Brookhaven Road. Officer Liss’s attention was drawn
          to the vehicle because, based on his training and
          experience, it appeared that the emission and
          inspection stickers were fraudulent.       Through his
          training, Officer Liss knew that [the Pennsylvania
          Department of Transportation (PennDOT)] uses
          many anti-counterfeit measures when producing the
          stickers; two of the biggest identifiers being the color
          of the sticker and the texture of the paper. From his
          vehicle, Officer Liss could clearly see the stickers in
          the bottom left-hand portion of the truck[’]s
          window[.] The color was his first indicator that they
          were not valid.      Typically, the sticker should be
          orange in color; however, the truck’s stickers were
          grayish in color.

                Officer Liss turned his patrol vehicle around,
          activated his emergency lights and siren, and
          conducted a vehicle stop at the area of Moore Road
          and Brookhaven Road. Officer Liss exited his patrol
          vehicle and made contact with the driver of the
          truck. The driver produced his license, registration,
          and insurance, which identified him as [appellant].
          There was also another male in the front passenger
          seat.

                As Officer Liss was speaking with [appellant],
          he could detect an odor of alcohol emanating from
          his breath and person. Officer Liss also observed
          that [appellant’s] speech was slightly slurred and his
          eyes were red and blurry. From his vantage point
          outside the window of the vehicle, Officer Liss could
          see that in the center of the vehicle, on the
          transmission hump, there was an open 40[-ounce]
          bottle of beer in a brown paper bag. Officer Liss
          asked [appellant] if he had been drinking to which


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          [appellant] responded that he had a shot and a beer
          earlier in the day.

                Officer Michael Markunas, of the Nether
          Providence Township Police Department, arrived as
          backup and the officers decided to ask [appellant] to
          exit his vehicle in order to conduct sobriety tests.
          With his twenty-four years as a patrolman,
          Officer Markunas has been involved in approximately
          500 arrests for DUI and has prior training in
          conducting field sobriety tests.

                Officer Markunas had [appellant] go over to
          the shoulder area of the road because it was a flat
          walking surface and had a straight line. Immediately
          upon speaking with [appellant], Officer Markunas
          detected an odor of alcohol emanating from
          [appellant’s] person and that [appellant’s] eyes were
          glassy and bloodshot.

                 Officer Markunas started with the horizontal
          gaze nystagmus test. Officer Markunas instructed
          [appellant] to stand with his feet together, hands at
          his side, to not move his head, and to stay still while
          following Officer Markunas’s pen with his eyes. As
          soon as Officer Markunas began to move the pen,
          [appellant] started turning his head; indicating to
          Officer Markunas that [appellant] was unable to
          follow simple instructions and that [appellant’s] eyes
          showed nystagmus.

                 Next, Officer Markunas performed the lack of
          convergence test. Typically, if the test is completed
          without failure, a person’s eyes should cross;
          [appellant’s] eyes stayed locked in the same
          position.

                Lastly, Officer Markunas asked [appellant] to
          perform the walk and turn test. Officer Markunas
          instructed [appellant] to keep his feet together,
          hands at his side, and count out loud nine heel-to-
          toe steps. Officer Markunas demonstrated the test
          for [appellant]. [Appellant] did not step heel-to-toe;



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            failed to keep his hands at his side; and did not turn
            even remotely close to the proper way.

                  Based on [appellant’s] performance on all
            three tests, Officer Markunas determined that
            [appellant] was under the influence, most likely of
            alcohol, and was incapable of safely [driving] a
            motor vehicle on the roads of the Commonwealth.

                  Officer Markunas informed Officer Liss that
            [appellant] failed all of the tests. Officer Liss placed
            [appellant] under arrest for [DUI] and put
            [appellant] in the back of his patrol vehicle, where
            he read [appellant] the Pennsylvania implied consent
            law and explained to him what the form meant.
            After reading and explaining the form twice,
            [appellant] refused to submit to any chemical
            testing, stating that he was not “alley drunk.”[2]

            ...
                  On August 8, 2015, counsel for [a]ppellant
            filed a motion to suppress alleging that the traffic
            stop of [a]ppellant’s vehicle was unlawful.     On
            September 4, 2015, this Court held a suppression
            hearing.    Counsel for the Commonwealth and
            counsel for [appellant] both agreed that testimony
            would be presented on the suppression issues and,
            depending on the outcome, a non-jury trial would be
            conducted immediately thereafter.

                  The Commonwealth presented testimony from
            Officer Liss and Officer Markunas who testified to the
            facts outlined above. Officer Markunas was offered
            and accepted as an expert in the field of sobriety
            testing     and    [DUI]    investigations.       The
            Commonwealth admitted two exhibits: C1 - Photo of
            [appellant’s] emission and inspection stickers and
            C2 [-] The Pennsylvania Implied Consent Form.

2
  Officer Liss testified that after he read a refusal to submit to chemical
testing form to appellant and asked appellant to sign the form, appellant
refused and stated, “I’m not alley drunk.” Officer Liss further testified that
he did not know what appellant meant by that statement. (Notes of
testimony, 9/4/15 at 40-41.)


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                  After hearing the testimony, this Court
           determined that the information provided by the
           officers was credible and that Officer Liss had
           reasonable suspicion to conduct a traffic stop based
           on a motor vehicle code violation. As such, this
           Court denied the motion to suppress.

                 In regards to the non-jury trial, the
           Commonwealth rested on the testimony provided at
           the suppression hearing and the admitted exhibits.
           Appellant presented Lavinia Beulah as a character
           witness. Ms. B[eul]ah testified that she has known
           [a]ppellant for forty years or more and that his
           reputation in the community is nice, friendly, helpful,
           honest, and of good moral character. Appellant also
           elected to testify.

                 Appellant stated that on February 8, 2015, he
           had two drinks, a shot and a beer, around noon.
           Around 3:00 p.m., [a]ppellant was driving his pickup
           truck with his friend in the front passenger seat and
           that his passenger had an open 40[-ounce] beer.
           Appellant stated [that] he felt confused by the
           sobriety tests and that he was never shown the
           implied consent form.

                The Court found [a]ppellant guilty of Count 1:
           DUI 1st offense; Count 2: Evidence of Emission
           Inspection; and Count 3: Restrictions on Alcoholic
           Beverages. Appellant was sentenced on Count 1 [to]
           72 hours to 6 months in Delaware County Prison.
           There was no further penalty for Count 2 or Count 3.

                 On October 2, 2015, [a]ppellant filed a notice
           of appeal. On October 26, 2015, [a]ppellant filed a
           1925(b) statement of matters complained of on
           appeal.

Trial court opinion, 11/13/15 at 1-6 (footnotes and citations to notes of

testimony omitted).

     Appellant raises the following issues for our review:


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            [1.]   Did the trial court err when it denied
                   [appellant’s] motion to suppression [sic]
                   evidence obtained as a result of an unlawful
                   traffic stop leading to his arrest?

            [2.]   Was the evidence insufficient to sustain a
                   conviction   of    [DUI]     because      the
                   Commonwealth failed to prove that [appellant]
                   committed that offense beyond a reasonable
                   doubt?

Appellant’s brief at 5.

      Our standard of review for challenges to the denial of a suppression

motion is as follows:

            [We are] 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, we are bound by these 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 our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).




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        Whenever a police officer has reasonable suspicion that a violation of

the Vehicle Code, 75 Pa.C.S.A. § 101, et seq., is occurring or has occurred,

he may stop a vehicle 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

[the Vehicle Code].”     Id. at § 6308(b).     Section 6308(b) requires only

reasonable suspicion to support a vehicle stop for gathering information

necessary to enforce a Vehicle Code violation.         A police officer must,

however, have probable cause to support a vehicle stop where the officer’s

investigation following the stop serves no “investigatory purpose relevant to

the suspected [Vehicle Code] violation.”      Commonwealth v. Feczko, 10

A.3d 1285, 1291 (Pa.Super. 2010) (en banc), appeal denied, 25 A.3d 327

(Pa. 2011). As explained by our supreme court:

             Indeed, the language of § 6308 reflects this very
             intent. Stops based on reasonable suspicion are
             allowed for a stated investigatory purpose:        “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).
             This is conceptually equivalent to the purpose of a
             Terry[3] stop. It does not allow all stops to be
             based on the lower quantum--it merely allows this
             for investigatory stops, consistent with the
             requirements of both federal and state constitutions.
             We interpret the legislature’s modification of § 6308
             as merely eliminating the statutory requirement of a
             greater level of information for a stop under the

3
    Terry v. Ohio, 392 U.S. 1 (1968).


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               Vehicle Code than is constitutionally required for all
               other stops.

Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008). “[I]f the officer

has a legitimate expectation of investigatory results, the existence of

reasonable suspicion will allow the stop--if the officer has no such

expectations of learning additional relevant information concerning the

suspected criminal activity, the stop cannot be constitutionally permitted on

the basis of mere suspicion.” Id. at 115. Therefore, “when 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.”

Id.

      Here, Officer Matthew Liss stopped appellant’s vehicle because he

observed that it appeared to have fraudulent inspection and emissions

stickers.   (Notes of testimony, 9/4/15 at 11.)       Officer Liss testified that

during the 16 years that he has been a police officer, he has come across

numerous fraudulent inspection and emissions stickers. (Id. at 9, 11-12.)

He stated that PennDOT uses many anti-counterfeit measures when it

produces inspection and emissions stickers, including the color of the sticker.

(Id. at 12.)

      As appellant’s truck and Officer Liss’ patrol vehicle passed each other

while traveling in opposite directions, Officer Liss testified that he noticed

that the stickers on appellant’s truck were gray, as opposed to the

PennDOT-issued orange.        (Id. at 13-16.)   This observation gave rise to a


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suspected violation of the Vehicle Code provision requiring that vehicles have

current, valid inspection stickers. See 75 Pa.C.S.A. § 4703(a). Under the

totality of the circumstances, then, Officer Liss’ initial observation that the

inspection and emissions stickers on appellant’s truck appeared to be

fraudulent gave Officer Liss reasonable suspicion to believe that appellant

was in violation of 75 Pa.C.S.A. § 4703(a). Therefore, the subsequent traffic

stop to investigate the inspection and emissions stickers affixed to

appellant’s vehicle was supported by reasonable suspicion.

      Appellant next complains that the Commonwealth failed to produce

sufficient evidence to sustain his DUI conviction.

            Our standard of review for a challenge to the
            sufficiency of the evidence is well settled. We must
            view all the evidence in the light most favorable to
            the verdict winner, giving that party the benefit of all
            reasonable inferences to be drawn therefrom.
            Additionally, it is not the role of an appellate court to
            weigh the evidence or to substitute our judgment for
            that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143

(Pa. 2004) (citations omitted).

      The Vehicle Code defines DUI as:

            § 3802. Driving under influence of alcohol or
            controlled substance.

            (a)   General impairment.



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                 (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.

75 Pa.C.S.A. § 3802(a)(1).

     In order to sustain a conviction under Section 3802(a)(1), the

Commonwealth must prove:       (1) that defendant was operating a motor

vehicle, (2) after imbibing a sufficient amount of alcohol such that the

individual is rendered incapable of safely driving.     Commonwealth v.

Kerry, 906 A.2d 1237, 1241 (Pa.Super. 2006).        To establish that one is

incapable of safe driving, the Commonwealth must prove that alcohol has

substantially impaired the normal mental and physical faculties required to

operate the vehicle safely.      Id.   “Substantial impairment” means a

diminution or enfeeblement in the ability to exercise judgment, to deliberate

or to react prudently to changing circumstances and conditions. Id. (citation

omitted).   Section 3802(a)(1) “is a general provision and provides no

specific restraint upon the Commonwealth in the manner in which it may

prove that an accused operated a vehicle under the influence of alcohol to a

degree which rendered him incapable of safe driving.”           Id. (citation

omitted).




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       Here, Officer Liss testified that after he pulled appellant over, he

smelled alcohol on appellant’s breath; he noticed that appellant’s eyes were

red, watery, and bloodshot; and that when he spoke with appellant, he

detected a slight slur. (Notes of testimony, 9/4/15 at 17-18.) Officer Liss

also observed a partially consumed 40-ounce bottle of beer resting on the

truck’s console. (Id. at 18, 36.) When Officer Liss asked appellant if he had

been drinking alcohol, appellant stated that he had consumed “a shot and a

beer” earlier in the day. (Id. at 18.) At that point, Officer Michael Markunas

arrived on the scene as backup and performed field sobriety tests. (Id. at

19.)

       Officer Markunas testified that when he began speaking with appellant,

he smelled alcohol emanating from appellant’s person and observed that

appellant’s eyes appeared glassy and bloodshot. (Id. at 51.) With respect

to field-sobriety testing, Officer Markunas first conducted horizontal gaze

nystagmus (“HGN”) testing, which is a vision test used to determine the

ability of the subject’s eyes to properly track and maintain focus on objects.

(Id. at 51-52.) Officer Markunas testified that appellant’s performance on

that test indicated that appellant was under the influence of “something.”

(Id. at 53.)   Officer Markunas then performed a lack of convergence test

which expands upon HGN testing. (Id. at 53-55.) Appellant’s performance

on that test also indicated that appellant was under the influence of

“something.” (Id. at 55.) Officer Markunas then performed a walk-and-turn



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test. (Id.) At the conclusion of that test, Officer Markunas testified that he

was “relatively sure” that appellant was under the influence of alcohol, a

controlled substance, or both.     (Id. at 55-56.)    At that point, due to

appellant’s lack of cooperation, Officer Markunas terminated testing. (Id. at

56.)   Officer Liss then placed appellant under arrest.      (Id. at 20-21.)

Appellant refused chemical testing. (Id. at 21.)

       Based on the record before us, and viewing the evidence, and all

reasonable inferences drawn therefrom, in the light most favorable to the

Commonwealth as verdict winner, the Commonwealth produced sufficient

evidence to show that appellant was operating a motor vehicle after

consuming a sufficient amount of alcohol to render him incapable of safe

driving and, therefore, sustain his DUI conviction.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016




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