J-S16036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANGEL ANTONIO ARROYO,                      :
                                               :
                       Appellant               :      No. 1863 EDA 2019

          Appeal from the Judgment of Sentence Entered June 3, 2019
                in the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0002456-2018

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                Filed: May 14, 2020

        Angel Antonio Arroyo (“Arroyo”) appeals from the judgment of sentence

imposed following his convictions of two counts of driving under the influence

of alcohol (“DUI”), and one count each of driving within single lane and

careless driving.1 We affirm.

        On February 11, 2018, at approximately 2:40 a.m., Pennsylvania State

Troopers Blake Shortall (“Trooper Shortall”) and Raphael Padilla (“Trooper

Padilla”), in full uniform and operating a marked police vehicle, were patrolling

State Route 378 (“SR-378”) South in Bethlehem City, Lehigh County,

Pennsylvania. Trooper Shortall observed a black sedan traveling in the right

lane of SR-378. After the black sedan passed the Catasauqua Road on/off

ramp, the driver’s side tires completely crossed over the center yellow dotted

line. Within one mile of travel, Trooper Shortall observed the passenger side
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1   75 Pa.C.S.A. §§ 3802(a)(1), (a)(2); 3309(1); 3714(a).
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tires completely cross over the fog line, and the driver’s side tires cross the

center line a second time.

      Trooper Shortall initiated a traffic stop based on the observed Motor

Vehicle Code violations. Trooper Shortall approached the driver side window

of the black sedan, and asked the driver, later identified as Arroyo, for his

driver’s license, vehicle registration, and proof of insurance. While speaking

with Arroyo, Trooper Shortall smelled the odor of alcohol on Arroyo’s breath.

Trooper Shortall additionally observed that Arroyo’s eyes were bloodshot and

glassy, and that Arroyo’s speech was slurred.     Based on his observations,

Trooper Shortall asked Arroyo to exit the vehicle and perform field sobriety

tests (“FSTs”). After conducting the FSTs, Trooper Shortall concluded that

Arroyo was driving while impaired and took Arroyo into custody for DUI.

      Arroyo was transported to the Lehigh County DUI Booking Center for a

blood draw. During the trip, Arroyo told Trooper Shortall that he drank earlier

that night because he had a “rough couple of weeks.” Once at the Lehigh

County DUI Booking Center, Arroyo consented to have his blood drawn and

tested. Arroyo’s blood was drawn at 3:40 a.m. on February 11, 2018, and

sealed.   Arroyo’s blood was subsequently transported to Health Network

Laboratories, where it tested positive for a blood alcohol content of 0.09%.

      The Commonwealth charged Arroyo with the above-mentioned offenses.

Arroyo filed an Omnibus Pre-trial Motion, seeking to suppress the vehicle stop

and all evidence flowing from the stop as fruits of the poisonous tree.

Specifically, Arroyo argued that he did not cause any safety risk to other

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drivers on the road; thus, Trooper Shortall lacked the requisite probable cause

to conduct a vehicle stop for a violation of driving within single lane. Following

a suppression hearing, the trial court denied the Motion.

        After a bench trial, the trial court found Arroyo guilty of two counts of

DUI, and one count each of driving within single lane and careless driving. On

June 3, 2019, the trial court sentenced Arroyo to an aggregated term of 6

months of probation, plus fines and costs.2 Arroyo filed a timely Notice of

Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors

Complained of on Appeal.

        Arroyo now presents the following issues for our review:

        1. Specific and articulable statements need to be made by law
        enforcement to justify a stop based on reasonable suspicion.
        Here, Arroyo was pulled over for violating section 3309 of the
        Motor Vehicle Code. [Section] 3309 requires that the driver
        remain in a single lane until movement can be made with safety.
        At the suppression hearing, no statements as to safety were
        made. When safety is a key component of the statute and no
        mention is made at the suppression hearing, are there specific and
        articulable facts to justify a stop?

        2. Whether the trial court’s verdict of guilt as to DUI[] was against
        the weight of the evidence where the officer was unable to link
        any observations of impaired driving to Arroyo and the
        Commonwealth’s evidence did not establish that Arroyo’s mental
        and physical faculties were impaired such that he could not safely
        operate a motor vehicle[?]

Brief for Appellant at 1 (emphasis omitted).

        In his first claim, Arroyo argues that the trial court erred in denying his

Omnibus Pre-trial Motion because Trooper Shortall lacked probable cause to
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2   Arroyo’s DUI convictions merged for sentencing purposes.

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conduct a vehicle stop. Id. at 10. Arroyo contends that the Commonwealth

only presented evidence of “erratic driving,” but did not present evidence that

Arroyo was driving in an “unsafe manner.” Id. at 17. Arroyo further asserts

that there was no nearby property or persons that were endangered by his

driving. Id. at 19.

       We adhere to the following standard of review:

       We may consider only the Commonwealth’s evidence 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 factual findings of the trial court, we are bound by
       those facts and may reverse only if the legal conclusions drawn
       therefrom are in error. An appellate court, of course, is not bound
       by the suppression court’s conclusions of law.

Commonwealth v. Hampton, 204 A.3d 452, 456 (Pa. Super. 2019).

       Probable cause is required to effectuate a traffic stop based on a

suspected violation of the Motor Vehicle Code, including driving within single

lane.3 Commonwealth v. Feczko, 10 A.3d 1285, 1288 (Pa. Super. 2010).

To satisfy this standard, an officer must be able to “articulate specific facts

possessed [] at the time of the questioned stop, which would provide probable

cause to believe that the vehicle or the driver was in violation of some

provision of the [Motor Vehicle] Code.” Id. at 1291. Such an inquiry must




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3 Section 3309 of the Motor Vehicle Code provides that “[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.A. § 3309(1).

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take into account the totality of the circumstances.        Commonwealth v.

Delvalle, 74 A.3d 1081, 1085 (Pa. Super. 2013).

      Here, in its Opinion, the trial court found that Arroyo completely crossed

over the center and fog lines three times, and thus, violated the Motor Vehicle

Code, driving within single lane.     Trial Court Opinion, 7/30/19, at 10-11.

Further, the trial court reasoned that because Arroyo had failed to maintain

his lane of travel, Trooper Shortall had the requisite probable cause to conduct

a vehicle stop. Id. at 11.

      Testimony at the suppression hearing established that Trooper Shortall

was patrolling SR-378 South at approximately 2:40 a.m. N.T. (Suppression),

12/14/18, at 4-5. Trooper Shortall observed a black sedan, driven by Arroyo,

completely cross both the center and fog lines three separate times. See id.

at 5, 15-18. Trooper Shortall testified that he first observed Arroyo cross from

the right lane into the left lane near the area of the Catasauqua ramp. Id. at

5. This portion of SR-378 South is a two-lane highway which has oncoming

lanes divided by a grassy median. Id. at 16. Arroyo then crossed the fog line

for approximately two to three seconds. Id. at 17. Trooper Shortall further

testified that Arroyo crossed the center line for a second time and that there

was another vehicle approximately three car-lengths ahead of Arroyo at this

time. Id. at 16, 18. After Trooper Shortall observed Arroyo cross the center

and fog lines three separate times within one mile of travel, he conducted a

traffic stop for a violation of driving within single lane. See id. at 5, 15-18.


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       Our review confirms that the traffic stop, based on an observed violation

of section 3309, was supported by probable cause.           See 75 Pa.C.S.A. §

3309(1); see also Feczko, 10 A.3d at 1292 (finding that police had probable

cause to conduct a traffic stop for a violation of driving within single lane where

the driver of a vehicle was “weaving within his lane and crossed out of his lane

of travel on numerous occasions[]” and, that the driver had created a safety

hazard where, despite other vehicles not needing to take evasive action, there

were vehicles in the lane adjacent to the defendant); Commonwealth v.

Slonaker, 795 A.2d 397, 401 (Pa. Super. 2002) (stating that the trooper had

probable cause to conduct a traffic stop for a violation of driving within single

lane where the defendant’s vehicle crossed over the fog line on three separate

occasions).    Given the totality of the circumstances, we conclude that the

evidence of record supports the suppression court’s factual findings, and its

legal conclusions are sound. See Hampton, supra. Therefore, we cannot

grant Arroyo relief on this claim.

       In his second issue, Arroyo contends that the trial court’s verdict was

against the weight of the evidence.4 See Brief for Appellant at 20. Arroyo

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4 In his Brief, Arroyo appears to conflate the issues of sufficiency and weight.
To the extent that Arroyo raises a sufficiency claim, such claim is waived, as
Arroyo failed to a raise a sufficiency challenge in his Statement of Questions
Involved. See Pa.R.A.P. 2116(a) (providing that “[n]o question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”); see also Commonwealth v. Harris, 979 A.2d 387
(Pa. Super. 2009) (stating that issues raised on appeal must be included in



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asserts that the Commonwealth did not establish that Arroyo was impaired to

the point that he could not safely operate a motor vehicle. Id.

       Initially, we observe that Arroyo did not assert that the trial court’s

verdict was against weight of the evidence in a post-sentence motion or orally

before the trial court. See Pa.R.Crim.P. 607(A) (providing that “[a] claim that

the verdict was against the weight of the evidence shall be raised with the trial

judge in a motion for a new trial.”); see also Commonwealth v. Gaskins,

692 A.2d 224, 228 (Pa. Super. 1997) (explaining that “[a]s a general rule,

weight of the evidence claims must first be posed to the trial court and cannot

be considered for the first time on appeal.”).     Additionally, Arroyo did not

include the weight claim in his Concise Statement. See Pa.R.A.P. 1925(b)(4)

(providing that issues not included in the concise statement are waived); see

also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (stating that

an appellant’s concise statement must properly specify the error to be

addressed on appeal and that issues not included in the concise statement are

generally waived). Therefore, Arroyo’s weight claim is waived.

       Judgment of sentence affirmed.




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the statement of questions involved in the appellant’s brief). Even if Arroyo
had properly raised this claim, we would conclude that Arroyo is not entitled
to relief for the reasons set forth by the trial court. See Trial Court Opinion,
7/30/19, at 2-7.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/20




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