J-S37034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DOUGLAS MICHAEL MCBRIDE

                         Appellant                   No. 1711 WDA 2015


          Appeal from the Judgment of Sentence October 22, 2015
               In the Court of Common Pleas of Butler County
            Criminal Division at No(s): CP-10-CR-0000247-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 08, 2016

      Douglas Michael McBride appeals from the judgment of sentence

entered in the Court of Common Pleas of Butler County following a non-jury

trial resulting in convictions of driving under the influence (DUI) and careless

driving. After our review, we affirm.

      The trial court summarized the relevant facts of this matter as follows:

      At 12:54 A.M. on November 15, 2014, Trooper [Mark] Hoehn
      was working the midnight shift along with Trooper James Long
      when the pair received a dispatch relating to a suspicious vehicle
      on Evans Road near Barton Road [in Butler, Pennsylvania]. After
      the troopers arrived on the scene at 1:12 A.M., it was clear to
      them that a vehicle had been involved in a single-vehicle
      accident.    This conclusion was based on observations that
      indicated the vehicle had been driven straight off of the roadway
      without swerving before it struck a stone wall. The vehicle was
      locked when the troopers encountered it. It was unoccupied.
      Trooper Hoehn observed that there was an impact point on the
      windshield that contained hair. From the perspective of the
      driver of the vehicle, the impact point was toward the center of
      the windshield. As there was snow on the ground, Trooper
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      Hoehn searched for animal tracks near the crash site. No tracks
      were found. Based on the observation[s] made at the scene of
      the collision, Trooper Hoehn suspected that the collision resulted
      from either a sleeping or an impaired driver.

      While on scene[,] the troopers ran the registration of the
      wrecked vehicle. It came back as belonging to [McBride] with an
      address of 349 Thorn Run Road. The troopers traveled to
      [McBride’s] residence and arrived there at approximately 1:42
      A.M. After [the troopers approached] the residence, Jade Benko
      answered the door. The troopers stepped inside. [McBride] was
      present. The troopers asked Ms. Benko about the accident. Ms.
      Benko responded by stating that she had been driving. Trooper
      Hoehn disbelieved Ms. Benko’s statement because she did not
      exhibit injuries consistent with the impact point observed on the
      windshield of the wrecked vehicle. [McBride], Trooper Hoehn
      observed, did have a red, swollen face. Trooper Hoehn asked
      Ms. Benko to step outside. He advised her that giving a false
      report was a crime, and indicated that he did not believe she had
      been driving. Ms. Benko then indicated that she had not been
      driving. She stated that she had received a call from [McBride]
      approximately one hour before the troopers arrived during which
      [McBride] indicated that he had wrecked his vehicle.

      Trooper Hoehn then reentered the residence and told [McBride]
      that he knew the truth. [McBride] then indicated that [he] had
      been driving and had wrecked his vehicle. When asked by
      Trooper Hoehn, [McBride] indicated that he was travelling from
      the Belmont II, a bar that is located off of Evans Road.
      [McBride] admitted to having consumed multiple alcoholic
      beverages. [McBride], Trooper Hoehn noticed, was severely and
      obviously impaired. His opinion was based on the strong odor of
      alcoholic beverages coming from [McBride], his slow, slurred
      speech, and his red, glassy eyes. Trooper Hoehn did not notice
      any indication that [McBride] had been consuming alcohol after
      the time of the accident. The troopers asked [McBride] to
      undergo field sobriety testing. [McBride] refused. At that point,
      the troopers attempted to place [McBride] in handcuffs.
      [McBride] became mildly combative, though the troopers were
      ultimately successful in arresting him.     [McBride] was then
      transported to the State Police Barracks for chemical testing[,
      which revealed a blood alcohol content (BAC) of .22%].

Trial Court Opinion, 7/31/15, at 2-3.


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        Based on the foregoing facts, McBride was charged with general

impairment DUI,1 DUI with the highest rate of alcohol,2 failing to drive on

the right side of the roadway,3 abandoning a vehicle on a highway,4

abandoning a vehicle on public or private property,5 careless driving,6 and

damage to unattended property.7                McBride filed a motion to suppress

evidence, asserting that Trooper Hoehn lacked probable cause to arrest him

for DUI. A hearing was held on July 22, 2015, and the trial court denied the

motion on July 31, 2015.          A non-jury trial was held on August 28, 2015,

after which McBride was found guilty of both DUI offenses and careless

driving.    On October 22, 2015, McBride was sentenced to six months of

intermediate punishment.

        McBride filed a timely notice of appeal and concise statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).            McBride

raises the following issues for our review:
____________________________________________


1
    75 Pa.C.S. § 3802(a)(1).
2
    75 Pa.C.S. § 3802(c).
3
    75 Pa.C.S. § 3301(a).
4
    75 Pa.C.S. § 3712(a).
5
    75 Pa.C.S. § 3712(b).
6
    75 Pa.C.S. § 3714(a).
7
    75 Pa.C.S. § 3745(a).




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      1. Whether the lower court erred in determining that Trooper
         Hoehn had probable cause to believe that there was a
         presence of controlled substances or alcohol in [McBride’s]
         blood at the time of the accident, such that subjection of
         [McBride] to chemical testing, and ultimately the arrest of
         [McBride], was reasonable or warranted?

      2. Whether the lower court erred in finding [McBride] guilty of
         violating 75 Pa.C.S. §§ 3802(a)(1) (General Impairment) and
         (c) (Highest Rate of Alcohol), even in light of the fact that
         [McBride] testified to having imbibed alcoholic beverages
         after the accident and prior to the interaction with the state
         police, and in failing to require the Commonwealth to prove
         [McBride] had not imbibed alcohol in between the accident
         and the interaction?

      3. Whether the lower court erred in finding [McBride] guilty of
         violating 75 Pa.C.S. §[§] 3802(a)(1) and (c) when the
         Commonwealth admittedly was unsure of when the accident
         occurred and, thus, [was] unsure of at what time [McBride]
         had been operating the vehicle?

Appellant’s Brief, at 6.

      McBride first claims that his suppression motion was improperly denied

because the police lacked probable cause to arrest him for DUI.            In

addressing a challenge to the denial of a suppression motion, our review

      is 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.

Commonwealth v. Hoppert, 39 A.3d 358, 361 (Pa. Super. 2012) (citation

omitted).



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      It is well-established that police may arrest without a warrant in

certain situations.   “Both the Pennsylvania Supreme Court and the United

States Supreme Court have consistently held police may arrest without a

warrant where the arresting officer has at least probable cause to believe the

person   arrested     has   committed    or   is   committing    an   offense.”

Commonwealth v. Williams, 568 A.2d 1281, 1286 (Pa. Super. 1990). In

a DUI case, “[p]robable cause exists where the officer has knowledge of

sufficient facts and circumstances to warrant a prudent person to believe

that the driver has been driving under the influence of alcohol or a controlled

substance.”   Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa. Super.

2008). “Under the totality of the circumstances, a police officer must make

a practical common sense decision whether, given all of the circumstances

known to him at that time, . . . there is a fair probability that a crime was

committed and that the suspect committed the crime.” Commonwealth v.

Holton, 906 A.2d 1246, 1249 (Pa. Super. 2006).

      Here, the record reveals that Troopers Hoehn and Long were

dispatched because of a report of a suspicious vehicle.         Based upon his

training and observation of the scene, Trooper Hoehn suspected that the

driver of the vehicle either had fallen asleep or was driving while impaired.

After determining that McBride owned the vehicle, the troopers went to

McBride’s residence.    McBride’s girlfriend indicated that approximately one

hour before the troopers arrived she had received a call from McBride

indicating he had been in an accident. McBride admitted to drinking multiple

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alcoholic beverages at a bar prior to wrecking his car.        Trooper Hoehn

noticed that McBride appeared to be severely intoxicated; he smelled of

alcohol and had slow, slurred speech and red, glassy eyes. Considering the

totality of the circumstances, Trooper Hoehn had probable cause to believe

McBride had been driving while under the influence of alcohol and therefore

had the authority to arrest him.8 Hilliar, supra; Holton, supra.

       Moreover, the case McBride cites in support of his position is easily

distinguishable from the facts of the instant matter.     McBride relies solely

upon Commonwealth v. Kohl, 615 A.2d 308 (Pa. 1992), in which two

cases were consolidated.          The cases in Kohl both involved one-vehicle

accidents in which no signs of impairment were present. On this basis, the

Pennsylvania Supreme Court determined that the Commonwealth failed to

establish probable cause existed to test the BAC of either driver. Id. at 313.

Instantly, however, Trooper Hoehn noted that the vehicle was driven off the

roadway in a manner consistent with an impaired driver.        Trooper Hoehn

also spoke with McBride and determined he had been drinking prior to the

accident. Thus, the facts of Kohl are inapposite to this case, and Trooper

Hoehn had a reasonable basis to believe McBride was driving while under the

influence.



____________________________________________


8
  We note that following his arrest, McBride consented to a chemical test of
his BAC. See N.T. Trial, 8/28/15, at 16.



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      Next, McBride challenges his conviction for DUI on the basis that he

drank alcohol in between the accident and the encounter with police, and the

trial court should have required the Commonwealth to prove he had not

imbibed alcohol during that time period.     McBride also asserts that the

Commonwealth could not prove when he had operated the vehicle because

the police could not pinpoint the exact time the accident occurred.    These

arguments amount to challenges to the sufficiency of the evidence.

      When reviewing a challenge to the sufficiency of the evidence,
      we must determine if the Commonwealth established beyond a
      reasonable doubt each of the elements of the offense,
      considering the entire trial record and all of the evidence
      received, and drawing all reasonable inferences from the
      evidence in favor of the Commonwealth as the verdict-winner.
      The Commonwealth may sustain its burden of proof by wholly
      circumstantial evidence.

Commonwealth v. Segida, 985 A.2d 871, 880 (Pa. 2009) (citations

omitted).

      A conviction under section 3802(a)(1) requires proof that the

defendant “drove while he was incapable of driving safely due to ingestion of

alcohol.”   Id.   In Segida, our Supreme Court held that the circumstantial

evidence presented was sufficient where the investigating police officer had

not seen the accident, but the defendant “admitted that he had been

drinking at a local club, and that he was driving himself and his brother

home when he lost control of his vehicle.”   Id. The instant case presents

similar circumstances. Although Officer Hoehn did not see the accident take

place, the nature of the accident was consistent with an impaired driver and


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McBride admitted to driving his vehicle and drinking prior to the accident.

As the Court noted in Segida, “the accident itself constitutes evidence that

[the defendant] drove when he was incapable of doing so safely.” Id. Thus,

we find that the Commonwealth provided sufficient evidence to convict

McBride under to section 3802(a)(1).

      Conviction under section 3802(c) requires proof that the defendant

was driving after imbibing a sufficient amount of alcohol such that the

defendant’s BAC is 0.16% or higher within two hours after the individual has

been driving.   75 Pa.C.S. § 3802(c).   However, evidence of BAC obtained

more than two hours after the defendant has driven is sufficient to establish

that element of the offense where (1) good cause is shown, and (2) the

Commonwealth establishes that the defendant did not imbibe alcohol

between the time he was arrested and the time the sample was obtained.

See 75 Pa.C.S. § 3802(g)(1)-(2).

      McBride argues that the evidence was insufficient because “the

Commonwealth presented no testimony and no evidence that would

establish that [McBride] did not imbibe any alcohol between the time of the

accident and the time of the chemical test, combined with the fact that it

cannot show at what time [McBride] last operated his vehicle.” Appellant’s

Brief, at 24.

      The Commonwealth concedes that it cannot prove when the accident

occurred. According to a phone log, McBride began calling Benko for a ride

at 11:44 p.m., and his BAC was not tested until 2:30 a.m.      Thus, even if

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McBride called Benko immediately after the accident, his blood was tested

more than two hours after the accident.       However, the Commonwealth

demonstrated good cause for not testing McBride’s BAC within two hours

after McBride fled the scene of the accident, satisfying section 3802(g)(1).

See Commonwealth v. Eichler, 133 A.3d 775, 786 (Pa. Super. 2016)

(defendant’s flight from accident scene and consequential delay in finding

him constituted good cause for failure to obtain blood test within two hours

after he stopped driving).

      Next, the testimony presented at trial indicated that McBride did not

drink alcohol after he was arrested, satisfying section 3802(g)(2). However,

McBride argues that the Commonwealth had the burden of showing that

McBride did not drink alcohol after the time of the accident and prior to the

time the sample was obtained. In support of this argument, McBride relies

on this Court’s decision in Commonwealth v. Segida, 912 A.2d 841, 849

(Pa. Super. 2006) (stating Commonwealth failed “to preclude the possibility

that Appellant ingested alcohol after the accident occurred”), vacated on

other grounds, 985 A.2d 871 (Pa. 2009) (Superior Court’s reversal of

Section 3802(c) conviction not at issue).        McBride’s reliance on this

statement   is   misplaced.    See    Eichler,   supra   at   786-87   (“The

Commonwealth fulfilled section 3802(g)’s no-imbibing element by presenting

the testimony of [police] officers during trial that Eichler did not drink

alcohol between the time of his arrest and the time of his blood test.”). The

Commonwealth met the requirements of section 3802(g) regarding obtaining

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BAC testing more than two hours after the accident and therefore presented

sufficient evidence to convict McBride under section 3802(c).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016




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