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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA

                  v.


 CLAYTON N. BONAWITZ

                         Appellant               :   No. 158 MDA 2019

     Appeal from the Judgment of Sentence Entered January 15, 2019
 In the Court of Common Pleas of Cumberland County Criminal Division at
                     No(s): CP-21-CR-0002092-2017


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                                  FILED JULY 31, 2019

      Clayton     N.   Bonawitz (Bonawitz) appeals from the judgment of sentence

imposed by the Court of Common Pleas of Cumberland County (trial court)

after his bench conviction of Driving Under the Influence, General Impairment,

75 Pa.C.S.    §   3802(a)(1). Specifically, Bonawitz challenges the trial court's

denial of his motion to suppress and the sufficiency of the evidence to support

his conviction. We affirm.

     We take the following pertinent factual background and procedural

history from our review of the certified record and the trial court's March 27,

2019 opinion. On Friday, April 20, 2017, at approximately 11:00 P.M., North

Middleton Police Officer Sean Sullivan was in        a   marked police vehicle heading

northbound when he observed          a   vehicle travelling southbound drive over the

centerline. (See N.T. Trial, 11/20/18, at 5). Officer Sullivan made           a   U-turn


   Retired Senior Judge assigned to the Superior Court.
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and began following the car.      Motor vehicle recordings (MVR) from Officer

Sullivan's police vehicle showed the officer's view from two minutes before the

traffic stop through its completion. The MVR showed Bonawitz traveling over

the centerline into oncoming traffic as he initially approached the officer's

oncoming vehicle, and two more times immediately after Officer Sullivan made

the U-turn to follow him. In addition, the video showed Bonawitz cross the

fog line onto the shoulder and travel closely beside trees, telephone poles and

a   traffic sign. Less than twenty seconds later, the video shows Bonawitz again

crossing over the fog line. In addition to these clear swerves over the center -

and fog lines, the MVR shows Bonawitz at least driving directly on top of those

lines, but it was unclear from the video whether he fully crossed them. Officer

Sullivan testified that based on his observations, Bonawitz drove over the

centerline about three times and over the fog line six or seven times. (See

id. at 26). Officer Sullivan activated his emergency lights   in an   effort to stop

Bonawitz for violating Section 3309(1) of the Pennsylvania Motor Vehicle

Code.

        When the officer made contact with Bonawitz, he "was fumbling around,

looking for his license, registration, and insurance." (N.T. Trial, at 6). Officer

Sullivan, who was specially trained related to DUIs, observed that Bonawitz

had bloodshot, glassy eyes and     that the odor of alcohol emanated from the

vehicle consistent with intoxication. (See id. at 6-7). After Officer Sullivan

called for backup, Officer Lively responded and asked Bonawitz to submit to


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field sobriety and preliminary breath tests.        Bonawitz refused.   During the

stop, Bonawitz repeatedly asked Officer Sullivan to contact another police

officer that Bonawitz allegedly knew. When Officer Sullivan asked Bonawitz

about drinking that evening, he became "defensive and combative." (Id. at

26).    Bonawitz initially refused to exit his vehicle and instead turned on his

cell phone to record the officers.

        Officer Sullivan ultimately arrested Bonawitz based on his suspicion that

Bonawitz was unable to operate his vehicle safely due to intoxication. When

Officer Lively searched Bonawitz's vehicle, he found three open containers of

beer and    a   cooler with ice and eleven unopened beers on the floor in the front

of the car.

        On November 20, 2018, Bonawitz filed a motion to suppress the        "stop,

seizure, detention and any subsequent evidence" for lack of cause to stop his

vehicle, which the trial court denied. (Omnibus Pre -Trial Motion to Suppress,

11/20/18, at 2).        The same day, after    a   bench trial, the court convicted

Bonawitz of DUI, General Impairment, and sentenced him on January 15,

2019, to six months' supervised probation, costs and fines, and ordered him

to obtain       a   drug and alcohol evaluation and follow any recommended

treatment. Bonawitz timely appealed. He and the court complied with Rule

1925. See Pa.R.A.P. 1925.




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        On appeal, Bonawitz argues           first that the trial court abused its discretion

in   denying his motion to suppress.' He maintains that Officer Sullivan lacked

the requisite probable cause to stop his vehicle and that, therefore, any

evidence obtained should have been suppressed.                     (See Bonawitz's Brief, at

17-21).

        Pursuant to the Pennsylvania Motor Vehicle Code:

        Whenever a police officer        .  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.    §   6308(b).

        "However, [t]raffic stops based on             a   reasonable suspicion   .   .   .   of   .   a


violation of the Motor Vehicle Code under the authority of Section 6308(b)

must serve        a   stated investigatory purpose." Commonwealth v. Cephus,

       A.3d           ,   2019 WL 1785117, at *2 (Pa. Super. filed Apr. 24, 2019)




' "Our standard of review       in addressing a challenge to the denial of a
suppression motion 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." Commonwealth v. Palmer, 145 A.3d
170, 173 (Pa. Super. 2016) (citation omitted). "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." Id.
(citation omitted). "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." Id. (citation omitted).


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(citation and internal quotation marks omitted).             "For    a   stop based on an

observed violation of the vehicle code or an otherwise non -investigable

offense, an officer must have probable cause to make             a   constitutional vehicle

stop." Id. (citation omitted); see also Commonwealth v. Feczko, 10 A.3d

1285, 1291 (Pa. Super. 2010) (en banc), appeal denied, 25 A.3d 327 (Pa.

2011) ("Mere reasonable suspicion will not justify           a   vehicle stop when the

driver's detention cannot serve an investigatory purpose relevant to the

suspected violation.").

        Here, Officer Sullivan testified that he stopped Bonawitz for violating

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).2 The trial court

found that Officer Sullivan had probable cause to effectuate the traffic stop

where: "[Bonawitz] traveled on    a   two-lane highway with other traffic present,

crossed the fog and centerlines multiple times each, and narrowly avoided

colliding with telephone poles, trees, and   a   traffic sign." (Trial Court Opinion,

3/27/19, at 3). We agree.




2 Counsel appeared to agree that Officer Sullivan pulled Bonawitz over for
travelling outside his lane, rather than on suspicion of DUI. (See N.T. Trial,
at 40-41).


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        At trial, the Commonwealth presented evidence that Bonawitz was

driving on   a   two-lane road, and when Officer Sullivan's car approached his

vehicle, Bonawitz was traveling over the centerline.      (See N.T. Trial, at 5).

The officer observed Bonawitz crossing over the fog and centerlines on

"numerous occasions." (Id.). Throughout the MVR, Bonawitz can be seen

driving on top of the center and fog line multiple times. (See Commonwealth's

Exhibit 3). Additionally, the MVR shows that when Bonawitz crossed the fog

line, he narrowly missed trees, telephone poles and   a   traffic sign.

        Based on the foregoing, we conclude that the trial court properly found

that Officer Sullivan had probable cause to stop Bonawitz.          Therefore, the

record supports its denial of the motion to suppress and Bonawitz's first

argument does not merit relief.3 See Palmer, supra at 173.



3  Moreover, we are not legally persuaded by Bonawitz's reliance on
Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001), and
Commonwealth v. Garcia, 859 A.2d 820 (Pa. Super. 2004). (See
Bonawitz's Brief, at 12). In Garcia, this Court concluded that "where a vehicle
is driven outside the lane of traffic for just a momentary period of time and in
a minor manner, a traffic stop is unwarranted," and that, therefore, the police
officer lacked probable cause. Garcia, supra at 823. However, in that case,
unlike in the one before us, the defendant only drove over the fog line twice
within the space of two blocks in response to another vehicle coming toward
him in the opposite lane. See id. Similarly, in Gleason, we found that the
officer lacked probable cause to stop a vehicle where the defendant was
driving on a four -lane divided highway when he crossed the fog line two or
three times over a quarter of a mile and there were no other vehicles on the
roadway. See Gleason, supra at 985.

      In comparison, in cases presented with situations far more akin to those
here, this Court found that the police officers had probable cause to effect a


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        Next, Bonawitz argues that the evidence was insufficient to support his

conviction of DUI, General Impairment, because the Commonwealth failed to

prove that he had imbibed enough alcohol to render him incapable of "safe

driving." (See Bonawitz's Brief, at 22-25).4

        Pursuant to 75 Pa.C.S.     §   3802(a)(1), "[a]n individual may not drive,

operate or be in actual physical control of the movement of              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)(1).   Based on this clear

language, to prove    a   violation of Section 3802(a)(1), the Commonwealth must



traffic stop. See Feczko, supra at 1292 (police officer had probable cause
to support stop where defendant touched fog line multiple times and crossed
over centerline when negotiating a curve); Commonwealth v. Chernosky,
874 A.2d 123, 128 (Pa. Super. 2005), appeal denied, 902 A.2d 1238 (Pa.
2006) (police had probable cause where defendant crossed both center and
fog lines more than once and narrowly missed hitting telephone pole);
Commonwealth v. Mickley, 846 A.2d 686, 690 (Pa. Super. 2004), appeal
denied, 860 A.2d 489 (Pa. 2004) (distinguishing Gleason, and holding police
had probable cause where defendant was driving on two-lane highway and
therefore "posed a clear hazard to herself and the motoring public");
Commonwealth v. Lindblom, 854 A.2d 604, 608 (Pa. Super. 2004), appeal
denied, 868 A.2d 1198 (Pa. 2005) (police had probable cause where driver
crossed center and fog lines four or five times each).

4 "A claim challenging the sufficiency of the evidence is a question of law.
Evidence will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission thereof by
the accused, beyond a reasonable doubt." Commonwealth v. Copenhaver,
200 A.3d 956, 963 (Pa. Super. 2018) (citation omitted). "When reviewing a
sufficiency claim the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence." Id. (citation omitted).

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establish that "the accused was driving, operating, or in actual physical control

of the movement of          a   vehicle during the time when he or she was rendered

incapable       of    safely    doing       so   due   to    the   consumption        of alcohol."

Commonwealth v. Teems, 74 A.3d 142, 145                            (Pa. Super. 2013), appeal

denied, 79 A.3d 1098 (Pa. 2013) (citation and internal quotation mark

omitted). The types of evidence the Commonwealth may use to establish                             a


violation of subsection 3802(a)(1) include, but are not limited to:                            "the

offender's actions and behavior, including manner of driving and ability to pass

field sobriety tests; demeanor, including toward the investigating officer;

physical appearance, particularly bloodshot eyes and other physical signs of

intoxication; odor of alcohol, and slurred speech." Id. (citation omitted).

        Here,        the   Commonwealth            presented       evidence    that     Bonawitz's

consumption of alcohol substantially impaired his ability to operate                      a   motor

vehicle safely. Officer Sullivan's testimony established that Bonawitz swerved

over the center and fog lines several times, narrowly avoiding colliding with

trees, telephone poles and              a    traffic sign.   When Officer Sullivan stopped

Bonawitz's vehicle and interacted with him, he saw that Bonawitz's eyes were

bloodshot and glassy and smelled the odor of alcohol emanating from the

vehicle. (See N.T. Trial, at 6-8). Bonawitz "fumbl[ed] around, looking for his

license, registration and insurance[,]" repeatedly refused                a   field sobriety test,

told the arresting officers to contact another member of the police force that

he knew, and         initially refused to get out of the vehicle. (Id. at 6; see id. at


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6-7, 17).      When asked about drinking that evening, Bonawitz became

"defensive and combative." (Id. at 26). Based on his training and experience,

Officer Sullivan believed this behavior to be consistent with intoxication. (See

id. at 4, 7). Finally, the police officers found three open beer cans on the floor

of Bonawitz's vehicle and eleven cold beers in    a   cooler of solid ice. (See id.

at 11; Commonwealth's Exhibits     1   and 2).

        Based on the above evidence, we conclude that the trial court properly

found that the evidence was sufficient to establish that Bonawitz imbibed

enough alcohol to render him incapable of driving safely. See Copenhaver,

supra at 963. Bonawitz's second issue fails and we affirm the judgment of
sentence.

        Judgment of sentence affirmed.



Judgment Entered.




J    seph D. Seletyn,
Prothonotary
Date: 7/31/2019




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