J-S24020-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JEREMY MICHAEL KANSKI,

                         Appellant                    No. 1390 MDA 2015


           Appeal from the Judgment of Sentence April 22, 2015
             In the Court of Common Pleas of Lycoming County
            Criminal Division at No(s): CP-41-CR-0001686-2013


BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 01, 2016

     Jeremy Kanski appeals from the April 22, 2015 judgment of sentence

of six months of County Intermediate Punishment, with thirty days of work-

release imprisonment, that was imposed after he was convicted at an

October 28, 2014 nonjury trial of driving under the influence of alcohol

(“DUI”)—high rate of alcohol.       The offense was graded as a misdemeanor

since it was Appellant’s second offense. We affirm.

     During the late night hours of July 5, 2013, and into the early morning

hours of July 6, 2013, the Lycoming County DUI task force launched DUI

checkpoints. Montoursville Borough Deputy Chief Jason Bentley participated

in the operation.   Deputy Chief Bentley had conducted about 100 DUI

investigations during his eight and one-half year tenure in the police
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department, was certified in the administration of standardized field sobriety

testing, and had completed courses on conducting DUI checkpoints. He was

stationed at the intersection of Arch Street and Reach Road in Williamsport,

where one of the checkpoints was being conducted, and he examined drivers

as they were stopped.

      At approximately 11:40 p.m. on July 5, 2013, Appellant was driving a

Jeep that proceeded into the Arch Street/Reach Road checkpoint.       Deputy

Chief Bentley introduced himself, explained to Appellant that he was at a

DUI checkpoint, and asked for Appellant’s driver’s license and registration

and whether he had anything to drink that evening. Appellant admitted to

drinking four or five beers, and Deputy Chief Bentley “could smell the odor

of alcohol coming from [Appellant’s] breath.” N.T. Nonjury Trial, 10/28/14,

at 11. Deputy Chief Bentley also noticed that Appellant’s eyes were glassy.

      Deputy Chief Bentley administered a preliminary breath test (“PBT”),

which indicated that Appellant’s blood alcohol content was .133%. Appellant

was then ordered from the vehicle and asked to perform three field sobriety

tests. The Horizontal Gaze and Nystagmus test indicated that Appellant was

intoxicated. On the walk-the-line test, Appellant missed heel to toe on the

first, second, and sixth steps and the ninth step on the return trip. Deputy

Chief Bentley reported that this performance was unsatisfactory. Appellant

was unable to maintain his balance during the one-legged stand and had to

use his arms to steady himself; this performance was also unsatisfactory.

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      At that point, Deputy Chief Bentley concluded that he had probable

cause to believe that Appellant was DUI and placed him under arrest. After

being administered the appropriate warnings, Appellant consented to blood

extraction, and his blood was drawn at 12:20 a.m. on July 6, 2013.           His

blood alcohol content (“BAC”) was .140%.

      On October 14, 2013, Appellant was charged with DUI-high rate of

alcohol. Appellant waived his preliminary hearing on October 14, 2013, and,

on January 10, 2014, he waived his arraignment, which had been continued

at Appellant’s request. On May 5, 2014, Appellant petitioned for the right to

file an omnibus pre-trial motion nunc pro tunc, and simultaneously filed that

motion.   Appellant sought, inter alia, to challenge whether Deputy Chief

Bentley had probable cause to arrest him at the DUI checkpoint.             That

motion was denied, without prejudice for Appellant to raise the question in

his post-sentence motion.

      After his conviction and sentencing, Appellant filed a post-sentence

motion raising, inter alia, challenges to the weight of the evidence

supporting his conviction and to the trial court’s refusal to allow him to file a

suppression motion nunc pro tunc. This appeal followed denial of the post-

sentence motion. Appellant presents these issues on appeal:

            1.    Whether the trial court erred in the denial of
      [Appellant’s] Omnibus Pre-Trial Motion Nunc Pro Tunc when the
      issues raised in the motion were meritorious and an injustice
      would be done if not heard?



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             2. Whether the Judge’s verdict as to count 1 is against the
       weight of the evidence when the laboratory analyst called by the
       Commonwealth was unable to testify as to many critical facts
       regarding the blood analysis and expiration dates of the testing
       material?

Appellant’s brief at 7.

       Appellant first maintains that the trial court should have allowed him

to file a motion to suppress nunc pro tunc to challenge whether Deputy Chief

Bentley had probable cause to arrest him for DUI.1        Pa.R.Crim.P. 579(a)

provides that any omnibus pre-trial motion must be “filed and served within

30 days after arraignment unless” there was no opportunity to file one, the

party filing the motion was not previously aware of the grounds for filing it,

or “the time for filing has been extended by the court for cause shown.”

Appellant’s arraignment was January 10, 2014, and he had until February

10, 2014, to file a pre-trial motion under this rule.     His motion was filed

three months later.        Appellant suggests that the trial court should have

permitted the nunc pro tunc filing for cause shown. He claims that he could

have challenged that there was probable cause for his arrest and that he

timely prepared a suppression motion but inadvertently failed to file it.

       While there is no case law articulating a standard of review in this

precise context, an “abuse of discretion standard governs our review of the

____________________________________________


1
  The omnibus pre-trial motion filed by Appellant contained other issues;
however, the probable cause contention is the only one raised on appeal.



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propriety of a grant or denial of an appeal nunc pro tunc.” Commonwealth

v. Stock, 679 A.2d 760, 762 (Pa. 1996). We conclude that this standard is

appropriately applied herein.     The trial court declined to entertain the

untimely suppression motion based on its conclusion that the record

established the existence of probable cause to arrest, and, in his motion to

suppress, Appellant provided no colorable challenge to that fact. After the

post-sentence motion was filed, wherein Appellant averred the ruling was

erroneous, the court examined a recording that had been made of Appellant

performing the field sobriety tests. It concluded that the recording did not

alter its view that probable cause existed for Appellant’s DUI arrest.

      Probable cause for a DUI arrest is present when a police officer has

sufficient facts at his disposal to warrant a prudent person to believe that

the driver of a vehicle is under the influence of alcohol. Commonwealth v.

Angel, 946 A.2d 115 (Pa.Super. 2008). The probable cause determination

is made based upon the totality of the circumstances and “a police officer

may utilize both his experience and personal observations to render an

opinion as to whether a person is intoxicated.”           Commonwealth v.

Williams, 941 A.2d 14, 27 (Pa.Super. 2008) (citation omitted).

      Herein, when Appellant’s original motion was filed, the record

established the existence of probable cause for Appellant’s arrest for DUI.

Deputy Chief Bentley reported that, after the stop, he smelled the odor of

alcohol “emanating from the vehicle.” Affidavit of Probable Cause, 7/17/13,

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at 1.    Appellant admitted to drinking four or five beers, and Deputy Chief

Bentley shined a flashlight on Appellant’s eyes, which “were glassy.”    Id.

The officer then administered a PBT, which “registered at .133%,” well

above the .08% permitted by law. Id.; see 75 Pa.C.S. § 1547(k) (a police

officer possessing reasonable suspicion that a person is DUI may require

that person to undergo a PBT; “The sole purpose of this preliminary breath

test is to assist the officer in determining whether or not the person should

be placed under arrest.”)

        Deputy Chief Bentley then conducted three field sobriety tests. “The

first task was the Horizontal Gaze and Nystagmus. [Deputy Chief Bentley]

checked each eye and detected all six clues.” Id. Appellant also failed the

walk-and-turn and one-legged stand.     Another officer then administered a

second PBT test, which “registered .125%.”      Id.   These facts were more

than sufficient to support Deputy Chief Bentley’s conclusion that he had

probable cause to arrest Appellant for DUI. Angel, supra (probable cause

for arrest existed with smell of alcohol on breath, slurred speech, glassy

eyes, and refusal to conduct field sobriety tests).     Commonwealth v.

Hilliar, 943 A.2d 984 (Pa.Super. 2008) (arrest upheld where defendant

smelled of alcohol, had slurred speech, and was combative).

        In his untimely motion to suppress, Appellant’s challenges to the

existence of probable cause were that no open alcohol containers were

contained in his vehicle, Deputy Chief Bentley did not ascertain if Appellant

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had physical ailments preventing him from performing the field sobriety

tests, and Appellant was not staggering around after he exited the vehicle.

The trial court noted that none of those facts negated the existence of

probable cause. It observed that Appellant did not tell Deputy Chief Bentley

that he was unable to perform the tests due to a physical infirmity, a person

does not have to be falling-down drunk to be DUI, and a person can be

guilty of DUI without the existence of an open container of alcohol in his

vehicle.   The trial court concluded that an evidentiary hearing on the

suppression motion was not warranted based upon Appellant’s positions.

      On appeal, Appellant levels those same averments. He observes that

“Deputy Chief Bentley did not enquire into any physical ailments that

[Appellant] may have had that would affect his performance on the tests.”

Appellant’s brief at 15.    Appellant also observes that, after he exited his

Jeep, he was not staggering and losing his balance and that the recording of

the stop did not “depict an individual [who] was obviously impaired[.]”

Appellant’s brief at 17. He asserts that he did not perform all that poorly on

the field sobriety tests.

      Appellant’s current arguments do not obviate, to any extent, that the

facts and circumstances at Deputy Chief Bentley’s disposal gave him

probable cause to arrest Appellant for DUI.      We examine the facts and

circumstances available to the police rather than those that are not present.

A person can be driving under the influence without being incapable of

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walking, and the fact remains that Appellant failed all three of his field

sobriety tests. He smelled of alcohol and had glassy eyes. He admitted to

drinking, and two PBTs indicated that his BAC was well above the legal limit.

Deputy Chief Bentley had probable cause to arrest Appellant for DUI, and

the trial court did not abuse its discretion in refusing to entertain Appellant’s

untimely suppression motion.

      Appellant next raises a claim that his conviction was against the

weight of the evidence.        When we review a weight-of-the-evidence

challenge, we do not examine the underlying question but the trial court’s

exercise of discretion in resolving the challenge.         Commonwealth v.

Leatherby, 116 A.3d 73 (Pa.Super. 2015).              This type of review is

necessitated by the fact that the trial judge heard and saw the evidence

presented. Id. Simply put, “One of the least assailable reasons for granting

or denying a new trial is the lower court’s conviction that the verdict was or

was not against the weight of the evidence and that a new trial should be

granted in the interest of justice.” Id. at 82. A new trial is warranted in this

context only when the verdict is “so contrary to the evidence that it shocks

one’s sense of justice and the award of a new trial is imperative so that right

may be given another opportunity to prevail.”             Commonwealth v.

Morales, 91 A.3d 80, 91 (Pa. 2014).

      On appeal, Appellant’s argument is not a model of clarity, and he fails

to cite to where his factual assertions are established in the record. He first

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maintains that the trial court should not have believed the results of his BAC

testing because the laboratory technician did not know the expiration date of

the gray-topped glass tube in which his blood was placed. He provides no

support for his counterintuitive proposition that glass tubes have expiration

dates. We therefore find this position unavailing. Appellant also notes that

the toxicologist who tested his blood reported that the glass tube with his

blood was not sealed.      He represents that she “testified that this [was]

against the guidelines for such a sample and how it should arrive[.]”

Appellant’s brief at 21.

      Appellant misconstrues the record. Donna Papsun tested Appellant’s

blood, which was in a gray-topped glass tube with a control number linking it

to Appellant.    She was asked whether the tube was sealed when she

received it, and she responded that it was not. Ms. Papsun was then asked,

“Even though it wasn’t sealed, were you concerned with the quality of the

sample?” N.T. Nonjury Trial, 10/28/14, at 52. The witness answered in the

negative and explained, “We received samples unsealed before. It’s up to

the sender or the client who is sending it to us. As long as the sample is

well stoppered, as well as it’s collected in a gray top tube, I have no

concern for the validity of the results.”    Id. at 53 (emphasis added).      As

Appellant’s arguments lack evidentiary support, we find no abuse of

discretion in the trial court’s denial of his weight-of-the-evidence claim.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016




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