J-A18021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY PHILIP SHUSTER                     :
                                               :
                       Appellant               :   No. 1473 WDA 2019

         Appeal from the Judgment of Sentence Entered August 28, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0003462-2019


BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                               FILED AUGUST 20, 2020

        Appellant, Gregory Philip Shuster, appeals from the Judgment of

Sentence of ninety days of intermediate punishment followed by nine months

of probation, imposed on August 28, 2019, by the Allegheny County Court of

Common Pleas following his conviction for Driving Under the Influence (“DUI”)

of a Controlled Substance.1 Appellant challenges the denial of his Motion to

Suppress the test results of a blood draw performed with his consent. Upon

review, we discern no error in the suppression court’s conclusion that police

had probable cause to arrest Appellant for suspicion of DUI. Thus, we affirm.

        We adopt the following statement of facts from the suppression court’s

Opinion, whose findings are supported by the record:




____________________________________________


1   75 Pa.C.S. § 3802(d)(1).
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      On December 7, 2018, at approximately 9:00 p.m., police officers

responded to a serious accident involving two cars, one of which was driven

by Appellant.    Officer Ian Lucas was the first to respond.      He observed

extensive damage to Appellant’s car. In addition, upon approaching the car

and speaking with Appellant, Officer Lucas observed that Appellant had

suffered injuries to his head and knee. He later learned that Appellant had

also suffered severe chest trauma during the accident.       Officer Lucas has

extensive experience investigating DUI cases.          Upon interacting with

Appellant, Officer Lucas observed that the smell of alcohol was readily

apparent on Appellant.

      Officer Brian Erikson arrived at the scene shortly thereafter.     Officer

Erikson also has DUI-investigative experience. He observed the same injuries

to Appellant and noticed a strong odor of alcohol coming from inside

Appellant’s vehicle. Appellant informed Officer Erikson that he was returning

home from a local restaurant, where he had consumed two, sixteen-ounce

IPA-style beers. The restaurant is located approximately one mile from the

scene of the accident.

      Due to the nature of Appellant’s injuries—to his head and knee—Officer

Erikson did not administer field sobriety tests.     According to the officer,

Appellant’s disorientation and inability to move effectively could render the

results of field tests inaccurate.

      Appellant was transported to a hospital for treatment.    At the hospital,

Officer Erickson read a DL-26B Form in its entirety to Appellant, who thereafter

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signed the DL-26B Form and consented to a blood draw. See Suppression Ct.

Op., 12/5/19, at 2-3.

       The test results of the blood draw revealed that Appellant’s blood alcohol

content was .152 percent and further found the presence of delta-9 THC, a

Schedule I substance, and delta-9 carboxy, a metabolite.              See N.T.

Suppression and Trial, 8/28/19, at 45.

       Appellant filed a Motion to Suppress the test results.       Following a

hearing, the lower court denied Appellant’s Motion, proceeded to a bench trial,

and found Appellant guilty as charged.2 The court imposed sentence as set

forth above.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The lower court issued a responsive Opinion.

       Appellant raises the following issue on appeal:

       Whether the [suppression] court erred in denying [Appellant’s]
       Motion to Suppress where the police did not have a warrant to
       arrest [Appellant] for DUI, [Appellant] was not at fault for the
       accident, the police did not have [Appellant] perform any field
       sobriety tests or take a breathalyzer test, and there was no
       evidence that [Appellant] had bloodshot glassy eyes or slurred
       speech[.]

Appellant’s Br. at 6 (unnecessary capitalization and emphasis removed).


____________________________________________


2 The court also found Appellant guilty of four additional counts of DUI but
imposed no sentence. See Order of Sentence, 8/28/19 (convicting Appellant
of 75 Pa.C.S. § 3802(a)(1), (b), (d)(2), (d)(3)). Initially, the Commonwealth
also had charged Appellant with Accident Involving Damage to Attended
Vehicle and Driving at Safe Speed. See 75 Pa.C.S. §§ 3743(a), 3361,
respectively. The Commonwealth withdrew those charges prior to trial.

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      We review the suppression court’s decision to deny a motion to suppress

to determine “whether [its] factual findings are supported by the record and

whether     the   legal   conclusions   drawn     from    those   facts   are

correct.” Commonwealth v. Milburn, 191 A.3d 891, 897 (Pa. Super. 2018)

(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.” Commonwealth v. Freeman,

150 A.3d 32, 34 (Pa. Super. 2016) (citation omitted). We are bound by the

suppression court’s factual findings where they are supported by the record,

and we may reverse only if the court’s legal conclusions are erroneous. Id. at

35.

      “Where . . . the appeal of the determination of the suppression court

turns on allegations of legal error, the suppression court’s legal conclusions

are not binding on an appellate court, ‘whose duty it is to determine if the

suppression court properly applied the law to the facts.’” Commonwealth v.

Jones, 988 A.2d 649, 654 (Pa. 2010) (citations omitted).          “Thus, the

conclusions of law of the courts below are subject to our plenary review.” Id.

(citations omitted).

      In this case, Appellant does not dispute the suppression court’s factual

findings.   Rather, Appellant contends that the Commonwealth failed to

demonstrate that the investigating officers who arrived at the scene of




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Appellant’s accident had probable cause to arrest him for DUI. See Appellant’s

Br. at 15.

      “To be constitutionally valid, a warrantless arrest must, of course, be

supported by probable cause.” Commonwealth v. Evans, 685 A.2d 535,

537 (Pa. 1996) (opinion in support of affirmance) (citation omitted). In the

context of a DUI investigation, “[p]robable cause exists where a police officer

has knowledge of sufficient facts and circumstances to warrant a prudent

person to believe that a driver has been driving under the influence of alcohol

or a controlled substance.” Commonwealth v. Maguire, 175 A.3d 288, 294

(Pa. Super. 2017) (citation and brackets omitted). “A police officer may utilize

both his experience and personal observations to render an opinion as to

whether a person is intoxicated.” Id. (citation and brackets omitted); see

also Commonwealth v. Wells, 916 A.2d 1192, 1195 (Pa. Super. 2007)

(noting that trained police officers may draw commonsensical inferences from

the facts).     “Probable cause justifying a warrantless arrest for DUI is

determined by the totality of the circumstances.” Maguire, 175 A.3d at 294

(citation and internal quotation marks omitted).

      Importantly, probable cause is not a prima facie showing of criminal

activity.    Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009).

“Probable cause exists when criminality is one reasonable inference; it need

not be the only, or even the most likely, inference.”     Commonwealth v.

Quiles, 619 A.2d 291, 298 (Pa. Super. 1993) (citations omitted); see also

Commonwealth v. Moss, 543 A.2d 514, 518 (Pa. 1988) (noting that the fact

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that other inferences could be drawn does not demonstrate that the inference

that was drawn by police was unreasonable).

      In denying Appellant’s Motion to Suppress, the suppression court

reasoned as follows:

      [B]oth Officer Erickson and Officer Lucas observed the odor of
      alcohol upon [Appellant] when they approached [him]. Officer
      Erickson testified that he made a determination, based upon his
      knowledge, experience, and the totality of the circumstances
      involved, that [Appellant] was incapable of safe driving at that
      time. Specifically, Officer Erickson had observed that [Appellant]
      had been involved in a car accident, that [Appellant] smelled of
      alcohol, and that [Appellant] had admitted to drinking alcohol at
      a location approximately one mile away that he had just left.
      These facts and circumstances would certainly permit a person of
      reasonable caution to believe that [Appellant] had committed the
      offense of DUI. [Appellant] cites to no case law that establishes
      the necessity of the performance of field sobriety tests, and this
      [c]ourt finds Officer Erickson's testimony credible with respect to
      the efficacy, or lack thereof, of such tests in light of [Appellant’s]
      injuries. When considering the totality of the circumstances, it is
      clear that Officer Erickson had probable cause to arrest
      [Appellant] for DUI. Accordingly, the Commonwealth met its
      burden of establishing that the blood draw was admissible, and
      this [c]ourt denied [Appellant’s] Motion to Suppress.

Suppression Ct. Op. at 5-6.

      Appellant   levies   several   arguments    purportedly    challenging   the

suppression court’s conclusions. See Appellant’s Br. at 15-31. Upon close

review, however, the essence of these arguments is that typical DUI cases

involve additional facts or observations from investigating officers that lend

greater weight to their probable cause determination.           See id. at 22-23

(compiling cases with “common factual considerations”).             According to




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Appellant, the absence of certain facts or observations typically found in DUI

cases militates against probable cause in this case. See id.

      These arguments misconstrue our standard of review. We do not focus

on the presence or absence of any one or two particular facts. Moreover, we

will not render a decision “devoid of commonsensical inferences[.]” Wells,

916 A.2d at 1195 (citation and brackets omitted). Rather, we examine the

totality of circumstances and ask whether a reasonably prudent officer had

probable cause to believe that the defendant was intoxicated.

      In this case, the evidence established that Appellant smelled of alcohol

and admitted to consuming alcohol shortly before driving his car and becoming

involved in a serious accident. Based on the totality of these circumstances,

it was reasonable for Officer Erikson to infer that Appellant had been driving

while under the influence of alcohol. Thus, we conclude that the suppression

court properly denied Appellant’s Motion to Suppress.

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2020




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