J-A26026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID LEE JUDY                             :
                                               :
                       Appellant               :   No. 36 WDA 2019

       Appeal from the Judgment of Sentence Entered November 27, 2018
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0002463-2016


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JANUARY 6, 2020

        David Lee Judy appeals from the judgment of sentence, entered in the

Court of Common Pleas of Westmoreland County, following his convictions for

driving under influence (DUI) general impairment,1 DUI high rate of alcohol,2

disregarding traffic lanes,3 careless driving,4 and failure to use safety belt.5

After careful review, we affirm.

        On July 22, 2015, around 9:55 p.m., Judy was driving near Motordrome

Road in Westmoreland County. Trooper Andrew Reith noticed Judy driving a

____________________________________________


1   75 Pa.C.S. § 3802(a).

2   75 Pa.C.S. § 3802(b).

3   75 Pa.C.S. § 3309(1).

4   75 Pa.C.S. § 3714(a).

5   75 Pa.C.S. § 4581(a)(2).
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red Chevrolet pick-up truck.    Over several hundred yards, Trooper Reith

observed the Chevrolet’s driver’s side tires cross over the yellow center lines

on three separate occasions. Judy turned off Motordrome Road, but a closed

gate prevented him from going further. Soon after Judy turned back onto

Motordrome Road, Trooper Reith signaled Judy to pull over. Judy complied.

      During the traffic stop, Trooper Reith detected a strong odor of alcohol

emanating from Judy’s breath, and noticed that Judy’s speech was slurred,

and that his eyes were bloodshot and glassy. Trooper Reith conducted a field

sobriety test requiring Judy to stand on one leg, with his arms at his side,

while counting until Trooper Reith instructed him to stop. Judy failed the test

by raising his arms for balance and placing his raised foot down several times.

Trooper Reith then administered the horizontal gaze nystagmus test that Judy

also failed. Trooper Reith arrested Judy for suspicion of DUI.

      Trooper Reith accompanied Judy to the barracks and read him the

chemical testing warning from the DL-26 implied consent form.             Judy

consented to a breath test. Trooper Reith signed the DL-26 form indicating

Judy consented to the breath test, but Judy did not sign the form. Trooper

Reith testified that he usually only has the suspect sign the form when they

refuse a chemical test. Trooper Reith observed Judy for 20 minutes and then

administered a breath test. The breath test results showed Judy had a blood

alcohol content (BAC) of 0.14 percent.

      On December 14, 2016, Judy filed a pretrial motion to suppress the

evidence of the breath test. At the suppression hearing, Judy testified that

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Trooper Reith did not read to him the implied consent form. On February 12,

2018, Judy filed a memorandum in support of his motion to suppress. The

Commonwealth responded on April, 12, 2018, and the Honorable Christopher

A. Feliciani denied the motion on May 2, 2018, finding Trooper Reith had

sufficient probable cause to pull Judy over and that Judy consented to the

breath test.

        After a nonjury trial on November 27, 2018, the Honorable Rita Donovan

Hathaway found Judy guilty of the above-mentioned crimes, but not guilty of

reckless driving.6        Judy was sentenced to six months’ intermediate

punishment, with 30 days of home electronic monitoring. Judy did not file

post-sentence motions. This timely appeal followed.

        Judy raises three issues for our review. First, he argues all evidence

obtained from the vehicle stop should have been suppressed because Trooper

Reith did not have probable cause to make a traffic stop. Next, he argues the

BAC evidence should have been suppressed because the breath test was taken

without consent. Finally, Judy argues the evidence was insufficient to sustain

the verdicts.

        Our standard of review for evaluating suppression rulings is well-settled.

In reviewing the rulings of a suppression court, our task is to determine

whether the factual findings are supported by the record. See in re L.J., 79

A.3d 1073, 1080 (Pa. 2013). We are bound by the factual findings of the

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6   75 Pa.C.S. § 3736(a).

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suppression court that find support in the record. Commonwealth v. Milner,

888 A.3d 680, 685 (Pa. 2005). However, we are not bound by that court’s

conclusions of law.   Commonwealth v. Nester, 709 A.2d 879, 891 (Pa.

1998). Because the suppression court found in the Commonwealth’s favor,

we may consider only the evidence of the Commonwealth and so much of the

evidence for the defense that remains uncontradicted when read in the context

of the record as a whole. Commonwealth v. Baker, 24 A.3d 1006, 1015

(Pa. Super. 2011).

     Judy first argues that Trooper Reith did not have probable cause to pull

him over. In this case, Trooper Reith initiated a traffic stop based on Judy’s

disregard for traffic lanes pursuant to Section 3309(1) of the Motor Vehicle

Code, which provides, “[a] vehicle shall be driven as nearly as practicable

entirely within a single lane and shall not be moved from the lane until the

driver has first ascertained that the movement can be made with safety.” 75

Pa.C.S. § 3309(1). An officer must have probable cause to justify a traffic

stop for a violation of Section 3309(1). See Commonwealth v. Feczko, 10

A.3d 1291, 1292 (Pa. Super. 2010); see also Commonwealth v. Cephus,

208 A.3d 1096, 1099 (Pa. Super. 2019). In Cephus, this Court found that

the vehicle stop was supported by probable cause when the arresting officer

observed Cephus’s vehicle cross the center line four times while traveling “a

couple hundred yards.” Cephus, 208 A.3d at 1098-99.




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      Here, Trooper Reith observed Judy drive over the center line three times

and erroneously pull into a closed entryway. After observing Judy’s driving,

Trooper Reith decided he would pull over Judy when they approached a large

gravel parking lot. N.T. Preliminary Hearing, 5/18/16, at 10. Viewing the

evidence in favor of the verdict winner, we find Trooper Reith had probable

cause that Judy was violating the Motor Vehicle Code, justifying the traffic

stop. See Cephus, 208 A.3d at 1099-1100.

      Judy next argues that Trooper Reith took the breath test involuntarily

and the results should be suppressed. Judy argues Trooper Reith did not read

him the implied consent warning and Judy did not sign the implied consent

form. However, Officer Reith had no duty to inform Judy he had a right to

refuse a breath test. See Commonwealth v. Robertson, 186 A.3d 440, 447

(Pa. Super. 2018). Furthermore, a signed DL-26 form is not required to show

consent to a breath test. See Commonwealth v. Moser, 188 A.3d 478, 481

(Pa. Super. 2018). We must consider the evidence in the light most favorable

to the verdict winner and are bound by the factual determinations of the trial

court supported by the record. See Milner, 888 A.3d at 685; Baker, 24 A.3d

at 1015. Trooper Reith testified that Judy consented to the breath test and

the trial court found his testimony credible. Opinion and Order of the Court,

5/1/18, at 5-6; N.T. Trial, 11/27/19, at 23.   The record supports the trial

court’s finding that Trooper Reith read Judy the DL-26 form and Judy




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consented to the breath test. Thus, the court properly denied Judy’s motion

to suppress the BAC evidence.

      In Judy’s last issue, he argues that the evidence was insufficient to

support his convictions for DUI general impairment and DUI high rate of

alcohol. We review Judy’s sufficiency of the evidence claims as follows:

      The standard we apply in reviewing the sufficiency of the 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 fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our 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 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.

Commonwealth v. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)

(citation omitted).

      A person commits the crime of DUI general impairment when he drives

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. 3802(a).       The

Commonwealth must prove: 1) that the defendant was the operator of the



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vehicle; and 2) while operating the vehicle, the defendant was under the

influence of alcohol to such a degree as to render him incapable of safe driving.

Commonwealth v. Gause, 164 A.3d 532, 541 (Pa. Super. 2017).

      Evidence that the driver was not in control of himself, such as
      failing to pass a field sobriety test, may establish that the driver
      was 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

Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000).

      At trial, the Commonwealth presented evidence that Judy crossed the

center line on three occasions and turned onto a closed entranceway. Judy

failed field sobriety tests given by Trooper Reith and recorded a 0.14% BAC

later that evening. Thus, the Commonwealth offered sufficient evidence to

show that Judy could not safely operate a vehicle after imbibing alcohol. See

id.

      Judy also argues that the evidence of DUI high rate of alcohol was

insufficient if the BAC evidence was suppressed as he argued in his first two

issues. As we have declined to reverse the trial court’s suppression decision,

this claim is moot. A person commits the crime of DUI high rate of alcohol

when he drives a vehicle “after imbibing a sufficient amount of alcohol such

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

0.10% but less than 0.16% within two hours after the individual has driven.”

75 Pa.C.S. 3802(b). Judy’s BAC result was 0.14% when he was tested at the




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station, which is within the required 0.10%-0.16% range specified by statute.

See id.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2020




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