J-S09009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

NICHOLAS ALEXANDER BOONE,

                            Appellant                No. 3494 EDA 2015


           Appeal from the Judgment of Sentence October 20, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0003701-2015


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 28, 2017

       Nicholas Alexander Boone (“Appellant”) appeals from the judgment of

sentence imposed on October 20, 2015, in the Court of Common Pleas of

Delaware County. We affirm.

       This case arises out of a traffic stop on January 17, 2015, at 3:35 a.m.

by Pennsylvania State Trooper Matthew J. Klein, which led to Appellant’s

arrest on two counts of driving under the influence (“DUI”). Appellant filed a

pre-trial motion to suppress evidence, wherein he claimed that the stop of

his vehicle was “without probable cause.” Omnibus Pretrial Motion, 8/21/15,

at ¶ 8.    Following a combined exclusionary hearing and nonjury trial on

September 11, 2015, the Honorable Kevin F. Kelly denied Appellant’s motion
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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to suppress, inter alia, the results of a breathalyzer test1 administered by

Trooper Klein. The trial judge then found Appellant guilty of DUI—general

impairment, and DUI—high rate of alcohol, in violation of 75 Pa.C.S.

§ 3802(a)(1) and (b), respectively. N.T., 9/16/15, at 4–5. On October 20,

2015, the trial court sentenced Appellant to incarceration for forty-eight

hours to six months.          N.T., 10/20/15, at 5, 7.   This appeal followed.

Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant presents the following questions for our consideration:

             Whether Birchfield[2] renders the results of the
       breathalyzer inadmissible on these facts and calls for remand to
       record the validity of [Appellant’s] purported consent. The pre-
       printed segment of the DL-26 form then in use, Commonwealth
       exhibit C-2, gave the trooper the choice between blood, breath
       or urine and was styled “Chemical Testing Warnings.” The
       narrow question presented is whether [Appellant] consented to
       the satisfaction of Birchfield, 75 Pa.C.S. 1547 and Pennsylvania
       case law.

             Whether this traffic stop was on a hunch or supported by
       reasonable suspicion based on facts articulated by the state
       trooper sufficient to support a seizure? [Appellant] committed
       no traffic violation, stayed in his lane and testified to a
       reasonable and uncontradicted explanation about his delay at
       the green light.

Appellant’s Brief at 7 (full italics omitted).

       Appellant first challenges the voluntariness of his consent to a

breathalyzer test.       Appellant’s Brief at 11.   In support of his position,
____________________________________________


1
    Appellant’s blood alcohol content was .125%.
2
    Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016).



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Appellant relies on Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct.

2160 (2016). According to Appellant, Birchfield renders a law that compels

consent to chemical testing unconstitutional.         Appellant’s Brief at 12.

Interpreting Birchfield broadly as including blood and breath tests,

Appellant argues that he “may have been coerced into a chemical test the

type of which was plainly up to the trooper.” Id. at 13. Consequently, he

claims entitlement to a hearing, as in Birchfield, at which the trial court

would “reevaluate” his consent to testing in light of the “obsolete language

of [the Implied Consent form] DL-26.” Id. at 12, 13.

      In response, the Commonwealth argues that Birchfield:

      provides no basis for relief for [A]ppellant who consented to a
      breath test which revealed his blood alcohol content (BAC) to be
      .125%. . . . Moreover, [A]ppellant’s claim, challenging the
      voluntariness of his consent to the breath test based upon
      Birchfield, was not raised in the trial court, is being raised for the
      first time on appeal and is, therefore, waived.

Commonwealth’s Brief at 9.

      Our review of the record confirms that Appellant failed to raise the

voluntariness of his consent to the breath test in the trial court. Thus, even

though we may apply case law decided during the pendency of a direct




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appeal,3 we agree that the issue of the voluntariness of Appellant’s consent

is waived.4

       Next, Appellant challenges the traffic stop by Trooper Klein as illegal.

Appellant argues that evidence obtained as a result of the stop should have

been suppressed.5 Appellant’s Brief at 15. In support of his position that

____________________________________________


3
  See Commonwealth v. Brown, 431 A.2d at 906–907 (Pa. Super. 1981),
overruled on other grounds, Commonwealth v. Geschwendt, 454 A.2d
991, 999 (Pa. 1982) (“[A] party whose case is pending on direct appeal is
entitled to the benefit of changes in law which occurs before the judgment
becomes final.”).
4
    Even if Appellant’s first issue had been preserved, it would not warrant
relief. Because “[b]lood tests are significantly more intrusive, and their
reasonableness must be judged in light of the availability of the less invasive
alternative of a breath test,” the Birchfield Court opined that “the search
incident to arrest doctrine does not justify the warrantless taking of a blood
sample.” Birchfield, 136 S.Ct. at 2185. In contrast, “[h]aving assessed
the effect of BAC tests on privacy interests and the need for such tests,” the
Birchfield Court concluded that “the Fourth Amendment permits
warrantless breath tests incident to arrests for drunk driving. The impact of
breath tests on privacy is slight, and the need for BAC testing is great.”
Birchfield, 136 S.Ct. at 2184.

   Here, Trooper Klein read the Implied Consent Form DL-26 to Appellant,
and Appellant consented to the breath test. N.T., 9/11/15, at 40 and Exhibit
C-2. Appellant “concedes the trooper gave no discernable indication there
would be anything but a breath test, and it was administered.” Appellant’s
Brief at 13. Appellant’s claim that he “may have been coerced into a
chemical test” is hollow. Id. Nothing in the record indicates that he
consented to anything but a breath test or that his consent to the breath
test was anything but voluntary.
5
   Specifically, Appellant sought suppression of evidence that an odor of
alcohol emanated from his person, his eyes were glassy, his speech was
slurred, he swayed while standing outside of the vehicle, and his attention
wavered. N.T., 9/11/15, at 36, 38.



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Trooper Klein’s traffic stop “smacks of overzealousness,” Appellant cites

Commonwealth v. Battaglia, 802 A.2d 652 (Pa. Super. 2002), and

Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008). Appellant’s Brief at

14, 15, 19.     According to Appellant, Battaglia requires a showing of

probable cause to stop a driver for DUI, and Chase requires a suppression

court to consider the motivation of the officer. Id. at 14, 18.

      Our review is guided by the following standards:

      “Once a motion to suppress evidence has been filed, it is the
      Commonwealth’s burden to prove, by a preponderance of the
      evidence, that the challenged evidence was not obtained in
      violation of the defendant’s rights.”      Commonwealth v.
      Wallace, 615 Pa. 395, 42 A.3d 1040, 1047–1048 (Pa. Super.
      2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to
      an appeal from the denial of a motion to suppress, our Supreme
      Court has declared:

               Our standard of review in addressing a challenge
            to a trial court’s denial of a suppression motion is
            whether the factual findings are supported by the
            record and whether the legal conclusions drawn from
            those facts are correct. When reviewing such a
            ruling by the suppression court, we must consider
            only the evidence of the prosecution and so much of
            the    evidence    of   the   defense   as   remains
            uncontradicted when read in the context of the
            record. ... Where the record supports the findings of
            the suppression court, we are bound by those facts
            and may reverse only if the legal conclusions drawn
            therefrom are in error.

      Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134
      (2007) (internal citations omitted). “Moreover, appellate courts
      are limited to reviewing only the evidence presented at the
      suppression hearing when examining a ruling on a pre-trial
      motion to suppress.” Commonwealth v. Stilo, 138 A.3d 33,
      35–36 (Pa. Super. 2016); see also In re L.J., 622 Pa. 126, 79
      A.3d 1073, 1083–1087 (2013).

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Commonwealth v. Evans, ___ A.3d ___, ___, 2016 PA Super 293, *3–4

(Pa. Super. 2016). “It is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.”   Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.

Super. 2006).

      With regard to the standard for conducting a traffic stop based on an

officer’s reasonable suspicion of DUI, “[i]n Commonwealth v. Sands, 887

A.2d 261 (Pa. Super. 2005), we upheld the constitutionality of the

‘reasonable suspicion’ standard set forth in the 2004 amendment to Section

6308(b). . . . Sands acknowledged the legislature’s motivation to address

DUI concerns through the 2004 amendment.” Commonwealth v. Feczko,

10 A.3d 1285, 1289 (Pa. Super. 2010).

      The suppression court disposed of Appellant’s exclusionary challenge

as follows:

            Trooper Matthew J. Klein has for approximately nine (9)
      years been a member of the Pennsylvania State Police.
      Throughout the course of his law enforcement career,
      Trooper Klein has received extensive DUI enforcement training
      well beyond the majority of most police officials, including but
      not limited to detection of drivers impaired by both alcohol
      and/or controlled substances, field sobriety testing certification,
      and [he] has been certified for chemical testing purposes in the
      use of the Datamaster breathalyzer. See Commonwealth Exhibit
      C-3 — Trooper Klein’s Datamanster [sic] Certification.
      Trooper Klein to date has made over three hundred (300) DUI
      arrests.

           On Saturday, January 17, 2015, at approximately
      3:30 a.m., Trooper Klein attired in a full police uniform and
      operating a marked police vehicle was traveling southbound on

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     Route 202 toward Route 1. The trooper’s attention was quickly
     drawn to a green Honda automobile driving ahead of his police
     cruiser and subsequently determined to be operated by
     [Appellant] on his observing this motor vehicle drifting and
     swerving from side to side, albeit within its designated travel
     lane, and the driver relatedly “jerking” the car back into a more
     expected and straighter path of travel. Trooper Klein then
     followed the green Honda sedan a modest distance to the
     intersection of Route 202 and Route 1.

            When he approached this intersection (Routes 202 and 1)
     the traffic light was red and [Appellant] appropriately brought his
     automobile to a stop. For absolutely no reason Trooper Klein
     could discern, [Appellant] on the traffic light cycling to green
     remained completely stopped with his automobile’s brake lights
     activated for some approximately seventeen (17) to eighteen
     (18) seconds. See Commonwealth Exhibit C-1 — MVR Recording.
     There was no other traffic impeding [Appellant] from timely and
     more expectedly proceeding through the green light. Id. The
     weather and road conditions were clear. Id. [Appellant’s] motor
     vehicle exhibited no signs whatsoever of mechanical problems.
     Id. As seen from Trooper Klein’s vantage point, there were no
     observable interactions between the [Appellant] driver and the
     front seat passenger otherwise potentially explaining why
     [Appellant] continued to remain stopped at the intersection
     some seventeen (17) through eighteen (18) seconds after the
     traffic light clearly cycled to green.

           Routes 202 and 1 is a major intersection comprised of five
     (5) travel lanes as one proceeds southbound, the direction
     [Appellant] was driving. There is one (1) lane for turning right
     onto Route 1 south, two (2) center lanes crossing over Route 1,
     and two (2) lanes designated for left turns onto Route 1
     northbound. Id. From the position [Appellant s]topped his
     automobile, there are two (2) overhead and clearly visible lights
     on the intersection’s far side controlling traffic crossing Route 1.
     Id. The other directions of travel comprising this intersection all
     have at least one (1), if not more, dedicated turning lanes and
     two (2) lanes for straight through driving. The intersection is
     extremely well lit. Id.

            Based on his extensive and varied DUI enforcement
     training, Trooper Klein was well aware that the day of the week
     (Saturday) and the time of day (3:30 a.m.) together with his

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      observations that [Appellant] within his designated travel lane
      was drifting, weaving and “jerking” the automobile back to a
      more expected and straighter path of travel suggested with
      appreciable probability an impaired driver. [Appellant] then
      remaining stopped with his brake lights activated some
      seventeen (17) to eighteen (18) seconds while the two (2) traffic
      lights unquestionably visible to him were green absent any
      observable explanations regarding this out of the norm driving
      behavior further heightened Trooper Klein’s suspicion that
      [Appellant] could very well be an impaired operator. For these
      reasons, Trooper Klein stopped [Appellant’s] automobile on
      suspicion of DUI. Material to these considerations, this court
      finds Trooper Klein to be a most credible witness.

            In light of the foregoing, this court concluded Trooper
      Matthew J. Klein based on the totality of material circumstances,
      including his direct observations of the manner in which
      [Appellant’s] motor vehicle was being operated and extensive
      DUI enforcement training as well as his related professional
      experiences and the rational inferences drawn therefrom, had
      reasoned articulable grounds to reasonably suspect [Appellant]
      may have been an impaired driver so as to warrant additional
      DUI investigation. The court thus also concludes the trooper’s
      stopping of [Appellant’s] automobile was constitutionally
      permissible.

Suppression Court Order, 9/16/15, at n.2 (internal legal citations omitted).

      Upon review, we consider Appellant’s reliance on Battaglia and Chase

misplaced.    Battaglia reaffirmed a probable-cause standard for vehicle

stops based on violations of the Motor Vehicle Code under the pre-

amended version of 75 Pa.C.S. § 6308(b). Feczko, 10 A.3d at 1288. In

Chase, the Pennsylvania Supreme Court held that “if police can articulate a

reasonable suspicion of a Vehicle Code violation [including DUI], a

constitutional inquiry into the officer’s motive for stopping the vehicle is




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unnecessary.” Chase, 960 A.2d at 120. Appellant’s contrary interpretation

of Chase is incorrect.

      Furthermore, our review confirms support in the record for the

suppression court’s findings of fact and the lack of legal error.           N.T.,

9/11/15, at 9–35. Thus, we dispose of Appellant’s suppression challenge by

adopting the opinion of the trial court as our own:

             Viewing its denial of the exclusionary motion under the
      applicable appellate standard, this court’s decision was
      supported by the record at bar. This court’s factual findings are
      clearly substantiated by the instant record and it correctly
      applied the appropriate law to the facts. Moreover, as fact-
      finder, the court was permitted to weight [sic] the testimony and
      decide the credibility of the witnesses as it saw fit.

            As Trooper Klein possessed the requisite standard of
      reasonable suspicion to conduct a stop of [Appellant’s] motor
      vehicle, the court did not err in denying his exclusionary motion,
      and this appellate complaint is meritless.

Trial Court Opinion, 6/7/16, at 11–12 (internal legal citations omitted).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2017




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