J-S69004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

HENRI JOHNSON

                          Appellant                    No. 2801 EDA 2014


             Appeal from the Judgment of Sentence July 25, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-CR-0037110-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED FEBRUARY 26, 2016

        Appellant, Henri Johnson, appeals from the judgment of sentence

entered in the Philadelphia County Municipal court, as confirmed by the

Philadelphia County Court of Common Pleas on September 18, 2014,

following denial of Appellant’s petition for writ of certiorari from his Municipal

court convictions on two (2) counts of driving under the influence of a

controlled substance or metabolites (“DUI”).1         Appellant argued in his

petition that the Municipal court erred in refusing to suppress the evidence

against him. For the following reasons, we affirm.

        The relevant facts and procedural history of this case are as follows.

At approximately 9:00 P.M. on September 23, 2013, Officer Devlin of the

Philadelphia Police Department initiated a traffic stop of Appellant for driving

1
    75 Pa.C.S.A. 3802(d)(1) and (d)(2).
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a vehicle at night without illuminated headlights.            When the officer

approached Appellant’s vehicle, he smelled an “intense” and “overwhelming”

odor of burnt marijuana.     When Appellant stepped out of the vehicle, the

officer smelled burnt marijuana on Appellant’s clothes and breath, and

noticed that Appellant’s eyes were glassy and bloodshot.        As a result, the

officer determined Appellant was under the influence of marijuana and

arrested Appellant for driving under the influence of a controlled substance.

      Appellant   appeared   before   the   Philadelphia    Municipal   court   on

December 27, 2013, where he moved to suppress the result of his blood test

obtained following his arrest.    Appellant argued the police did not have

probable cause to arrest him and seize his blood sample.            Following a

hearing, the Municipal court denied Appellant’s motion. On May 19, 2014,

Appellant was convicted on both DUI counts.2               The court sentenced

Appellant on July 25, 2014, to seventy two (72) hours to four (4) months’

confinement, with two (2) months’ concurrent probation.

2
   On appeal, the Commonwealth rests its position primarily on the
proposition that Appellant entered a guilty plea in Municipal court and by
virtue of the plea, he waived any objection to that court’s suppression
decision. We cannot accept this waiver contention. The certified record in
this case contains internal inconsistencies. The record represents that
Appellant received a guilty trial verdict before the Municipal court. The
record also suggests in several other minor places that there was a guilty
plea. Because the record is unclear, we proceed as if Appellant was tried
and convicted. Even if Appellant entered a guilty plea, Appellant still had the
right to appeal to the Court of Common Pleas, but his issue might have been
subject to waiver. The Commonwealth, however, argued the merits of the
issue before the Court of Common Pleas, which further reinforces our
decision to proceed with appellate review on the merits as well.
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      Appellant timely filed a petition for writ of certiorari to the Philadelphia

County Court of Common Pleas (“CCP”) on August 20, 2014, challenging the

denial of his motion to suppress. On September 18, 2014, the CCP denied

Appellant’s petition for writ of certiorari. On September 26, 2014, Appellant

filed a timely notice of appeal to this court.     On October 28, 2014, CCP

ordered Appellant to file a concise statement of errors complained of on

appeal, pursuant to Pa.R.A.P 1925(b). Appellant timely filed his statement

on November 17, 2014.

      Appellant raises the following issue:

         DID NOT THE [TRIAL] COURT ERR IN FINDING THAT
         POLICE HAD PROBABLE CAUSE TO ARREST APPELLANT
         FOR DRIVING UNDER THE INFLUENCE OF A CONTROLLED
         SUBSTANCE BASED ON THE OFFICER’S OBSERVATION
         THAT THE CAR APPELLANT WAS DRIVING WITHOUT
         HEADLIGHTS SMELLED OF BURNT MARIJUANA, AND
         APPELLANT HAD BLOODSHOT EYES?

(Appellant’s Brief at 3).

      Appellant argues the police lacked probable cause to arrest him for

driving under the influence of a controlled substance, based solely on the

observation that Appellant, and the car he was driving, reeked of burnt

marijuana, and Appellant had bloodshot eyes.           Appellant maintains he

showed no indication that he was incapable of driving safely. In support of

his claim, Appellant points out that he was not driving recklessly; he fully

cooperated with the officer; his appearance was neat and orderly; and his

speech and sense of balance seemed normal.           Appellant concludes he is
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entitled to a new trial without the blood results. We disagree.

      A petition for writ of certiorari asks CCP to sit as an appellate court to

review the Municipal Court record. Commonwealth v. Beaufort, 112 A.3d

1267 (Pa.Super. 2015); Commonwealth v. Menezes, 871 A.2d 204, 207

n.2 (Pa.Super. 2005). Issuance of a writ of certiorari is within the discretion

of the CCP as the reviewing court.     Commonwealth v. Elisco, 666 A.2d

739 (Pa.Super. 1995).    “Certiorari provides a narrow scope of review in a

summary criminal matter and allows review solely for questions of law.

Questions of fact, admissibility, sufficiency or relevancy of evidence

questions may not be entertained by the reviewing court on certiorari.” Id.

at 740-41.

      Review of an order denying a suppression motion is subject to the

following principles:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

             [W]e 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, we
             are bound by those facts and may reverse only if the
             court erred in reaching its legal conclusions based
             upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en


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banc) (internal citations and quotation marks omitted).      Further, “Both

Municipal and Common Pleas Courts are bound by the same law and apply

the same standards in ruling upon the merits of the suppression motion.”

Commonwealth v. Harmon, 469 Pa. 490, 498, 366 A.2d 895, 899 (1976)

(internal footnote omitted).   “The judges of both courts are trained in the

law and their decisions are subject to review…upon appeal to the appellate

tribunals of this Commonwealth.” Id.

     Section 6308 of the Motor Vehicle Code provides:

        § 6308. Investigation by police officers

                                 *     *   *

            (b) Authority of police officer.―Whenever a police
        officer is engaged in a systematic program of checking
        vehicles or drivers or 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) (emphasis added). “Mere reasonable suspicion will

not justify a vehicle stop when the driver’s detention cannot serve an

investigatory purpose relevant to the suspected violation.” Commonwealth

v. Feczko, 10 A.3d 1285, 1291 (Pa.Super. 2010), appeal denied, 611 Pa.

650, 25 A.3d 327 (2011). “In such an instance, ‘it is [incumbent] upon the

officer to articulate specific facts possessed by him, at the time of the


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questioned stop, which would provide probable cause to believe that

the vehicle or the driver was in violation of some provision of the

Code.’” Id. (emphasis in original).

      “Probable cause is made out when the facts and circumstances which

are within the knowledge of the officer at the time of the arrest, and of

which he has reasonably trustworthy information, are sufficient to warrant a

[person] of reasonable caution in the belief that the suspect has committed

or is committing a crime.”   Commonwealth v. Thompson, 604 Pa. 198,

203, 985 A.2d 928, 931 (2009) (internal quotation marks omitted).

         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.

Id. (emphasis in original) (internal citations and quotation marks omitted).

      In Commonwealth v. Tolbert, 341 A.2d 198, 200 (Pa.Super. 1975),

this Court said:

         When we examine a particular situation to determine if
         probable cause exists, we consider all the factors and their
         total effect, and do not concentrate on each individual
         element. We also focus on the circumstances as seen
         through the eyes of the trained officer, and do not view the
         situation as an average citizen might. Finally, we must
         remember that in dealing with questions of probable
         cause, we are not dealing with certainties. We are dealing
         with the factual and practical considerations of everyday
         life on which reasonable and prudent [persons] act. This is
         not the same “beyond-a-reasonable-doubt” standard which
         we apply in determining guilt or innocence at trial.


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Id. (internal citations and quotation marks omitted).        Pennsylvania law

makes clear, however, that a police officer has probable cause to stop a

motor vehicle if the officer observed a traffic code violation, even if it is a

minor offense. Commonwealth v. Chase, 599 Pa. 80, 89, 960 A.2d 108,

113 (2008).       Whether probable cause existed is a question of law.

Commonwealth v. Newman, 84 A.3d 1072, 1080 (Pa.Super. 2014),

appeal denied, 627 Pa. 757, 99 A.3d 925 (2014) (stating: “What facts and

circumstances amount to probable cause is a question of law).”

      Section 3802 of the Motor Vehicle Code in relevant part provides:

         § 3802.     Driving under influence of alcohol or
         controlled substance

                                  *    *    *

             (d) Controlled substances.―An individual may not
         drive, operate or be in actual physical control of the
         movement of a vehicle under any of the following
         circumstances:

            (1)    There is in the individual’s blood any amount of a:

              (i) Schedule I controlled substance, as defined in the
              act of April 14, 1972 (P.L. 233, No. 64), known as
              The Controlled Substance, Drug, Device and Cosmetic
              Act;

              (ii) Schedule II or Schedule III controlled substance,
              as defined in The Controlled Substance, Drug, Device
              and Cosmetic Act, which has not been medically
              prescribed for the individual; or

              (iii) metabolite of a substance under subparagraph (i)
              or (ii).


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             (2) The individual is under the influence of a drug or
             combination of drugs to a degree which impairs the
             individual’s ability to safely drive, operate or be in
             actual physical control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(d)(1)-(2) (footnote omitted).

     Instantly, the following facts are undisputed.    Officer Devlin lawfully

stopped Appellant’s vehicle for driving without illuminated headlights at

approximately 9:00 P.M. on September 23, 2014. Appellant was the driver

and sole occupant of the vehicle. Appellant’s vehicle and person reeked of

burnt marijuana, and Officer Devlin observed that Appellant’s eyes were

bloodshot.     Officer Devlin found no marijuana or        paraphernalia on

Appellant’s person or in the immediate area of the car.     The only dispute

Appellant raises in the case is whether the police officers had sufficient

probable cause to arrest Appellant for DUI.

     In response to Appellant’s issue, the trial court reasoned:

        Law enforcement officers generally need a warrant in order
        to arrest an individual while in a public place. However,
        this warrant requirement can be circumvented when there
        is a probable cause to believe that “a felony has been
        committed” and that “the person to be arrested is the
        felon.” Commonwealth v. Clark, 735 A.2d 1248, 1251
        (Pa. 1999). In order to determine whether a warrantless
        search was justified by sufficient probable cause, courts
        must consider the totality of the circumstances. This
        means that determinations of probable cause need not be
        based on absolute “certainties,” but rather they are based
        on the “factual and practical considerations of everyday life
        on which reasonable and prudent persons act.”
        Commonwealth v. Simmen, 58 A.3d 811, 817
        (Pa.Super. 2012).      Accordingly, a police officer has
        probable cause to make a warrantless arrest when the
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       “facts and circumstances within the police officer’s
       knowledge and of which the officer has reasonably
       trustworthy information are sufficient in themselves to
       warrant a person of reasonable caution in the belief that
       an offense has been committed by the person to be
       arrested.” Commonwealth v. Dommel, 885 A.2d 998,
       1002 (Pa.Super. 2005). The burden is placed on the
       Commonwealth to show probable cause for the arrest with
       “reasonable specificity.”    Commonwealth v. Bartlett,
       406 A.2d 340, 341 (Pa. 1979). This is a relatively high
       standard, whereas an officer’s “mere suspicion” that a
       crime is being committed, or has been committed is not
       enough to justify a finding of probable cause. Id.

       When an item with incriminating characteristics is in plain
       view, the totality of the circumstances justifies a finding of
       probable cause, so long as the arresting officer had the
       “lawful right of access to the object seen in plain view.”
       Commonwealth v. McCree, 924 A.2d 621, 628 (Pa.
       2007). A “plain smell” doctrine analogous to that of the
       plain view doctrine was established in Commonwealth v.
       Stoner[,     344      A.2d     633    (Pa.Super.       1975)].
       Commonwealth v. Stainbrook, 471 A.2d 1223, 1225
       (Pa.Super. 1984). If an officer is justified in his presence
       in a particular location, his “detection of the odor of
       marijuana is sufficient to establish probable cause.” Id.
       (citing Stoner).

       In the instant case, Officer Devlin, without question, was
       legally justified in being present next to the defendant’s
       vehicle at the time he smelled the odor of marijuana. This
       is because driving without headlights, the act for which
       [Appellant] was pulled over, can be categorized as careless
       driving as it involves the “careless disregard for the safety
       of persons or property.” 75 Pa.C.S.A. § 3714.

                                *    *    *

       [Appellant] argues, based on Commonwealth v. Long,
       that probable cause did not exist to arrest him for driving
       unsafely because there was no nexus between the odor of
       marijuana and the officer’s determination that [Appellant]
       was unable to safely operate his motor vehicle. See
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         Commonwealth v. Long, 396 A.2d 463 (Pa.Super.
         1978). [Appellant’s] argument rests on the idea that there
         could have been no other contributing factors to Officer
         Devlin’s assessment of probable cause other than the
         overwhelming smell of marijuana coming from the car.
         [Appellant], in his Writ to this [c]ourt, alleges that there is
         “no indication that [he] was incapable of safe driving,’ and
         offers as support the fact that he stopped when signaled,
         that his appearance was neat and orderly, and that his
         speech and sense of balance seemed normal. [Appellant]
         asserts that the smell of marijuana, combined with his
         behavior, left Officer Devlin with only the mere suspicion
         that [Appellant] was incapable of driving safely. This
         argument disregards the fact that [Appellant] was
         operating a motor vehicle after 8:00 p.m. without
         headlights, in late September, which would have made it
         difficult for other drivers to see his vehicle. Not only are
         the actions of [Appellant] dangerous, but they are enough
         to lead a trained Philadelphia Police Officer to believe that
         [Appellant] was unfit to operate said motor vehicle. Based
         on the standard of the totality of the circumstances, the
         fact that [Appellant] was driving without the use of his
         headlights, along with the overwhelming odor of marijuana
         coming from the car and [Appellant’s] bloodshot eyes, is
         sufficient to justify Officer Devlin’s probable cause to arrest
         [Appellant].

(Trial Court Opinion, filed February 25, 2015, at 2-4). We accept the court’s

analysis and see no reason to disturb its decision. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2016
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