             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Moya Rodriguez,                                 :
                              Appellant         :
                                                :
               v.                               :    No. 1969 C.D. 2015
                                                :    Submitted: April 15, 2016
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing                      :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                     FILED: June 22, 2016

               Appellant Moya Rodriguez (Licensee), pro se, appeals from an order
of the Court of Common Pleas of Montgomery County (trial court). The trial court
denied Licensee’s statutory appeal of the suspension of Licensee’s driving
privileges by the Department of Transportation, Bureau of Driver Licensing
(DOT). DOT issued a notice suspending Licensee’s operating privileges under
Section 1547(b)(1)(i) of the Vehicle Code (Code)1 based upon her refusal to submit
to chemical testing. We affirm the trial court’s order.


       1
         75 Pa. C.S. § 1547(b)(1)(i). Section 1547(b)(1)(i) of the Code provides that if any
person who is arrested for driving under the influence of alcohol “is requested to submit to
chemical testing and refuses to do so . . . the department shall suspend the operating privilege of
the person . . . for a period of 12 months.” This provision is commonly known as the Implied
Consent Law.
            On October 8, 2014, Montgomery Township Police Officer Thomas
Ward arrested Licensee and charged her with driving under the influence of
alcohol. On October 21, 2014, DOT sent a notice of suspension to Licensee,
informing her that her driving privileges were suspended for a one (1)-year period
as a result of her refusal to submit to chemical testing following her arrest.
Licensee filed a statutory appeal of the suspension notice, and the trial court
conducted a hearing on September 28, 2015.
            During the hearing, DOT introduced the testimony of Officer Ward.
Officer Ward testified that on October 8, 2014, at approximately 7:25 p.m., he
responded to the report of a vehicle accident at the area of Mallard Drive and Rose
Twig Lane in Montgomery Township. (Reproduced Record (R.R.) at 5A.) Officer
Ward arrived on scene at approximately 7:30 p.m. and observed a green BMW
stopped in the middle of the road in front of 135 Mallard Drive with its four-way
flashers activated. (Id. at 5A, 29A.) The resident of 136 Mallard Drive, who was
standing on his front lawn, informed Officer Ward that Licensee had been driving
the BMW when it struck his vehicle parked legally in the street. (Id. at 5A.)
Officer Ward inspected the two vehicles and discovered that the BMW had
suffered disabling, moderate damage to the front passenger side quarter panel and
bumper, and that the other vehicle had suffered damage to the rear driver’s side
quarter panel and bumper. (Id. at 5A-6A.)
            After inspecting the vehicles, Officer Ward observed Licensee exit her
residence and walk in the direction of the vehicle accident. (Id. at 6A.) At that
time, Officer Ward noticed that Licensee was unsteady on her feet. (Id.) Licensee
informed Officer Ward that she was the driver and sole occupant of the BMW and
that she was changing a song on her iPad at the time of the collision. (Id.) As


                                        2
Officer Ward spoke with Licensee, he “could smell a strong odor of an alcoholic
beverage on her breath, her eyes were bloodshot, glassy, and droopy[,] . . . her
speech was slow and slurred at times[,] . . . [and] her motor movements were
lethargic.” (Id.) Officer Ward asked Licensee for her driver information, and
Licensee handed Officer Ward every document contained in the BMW’s glove
compartment. (Id.) When Officer Ward asked Licensee how much alcohol she
had consumed, Licensee initially stated that she had had one drink with dinner,
however, Licensee later indicated that it had been a few drinks with dinner. (Id.)
Officer Ward asked Licensee to perform field sobriety tests, and Licensee refused.
(Id.) Officer Ward then asked Licensee to perform the field sobriety tests away
from the vehicle collision and out of view of the neighbors, but Licensee again
refused. (Id. at 6A-7A.)
            As he was completing the accident report, Officer Ward requested that
his back-up officer, Police Officer Dave Dunlap, speak to Licensee to see if he
could convince her to complete field sobriety tests. (Id. at 7A.) Officer Ward
explained: “[Licensee] didn’t like me, because I asked her if she [had been]
drinking. So our, you know, relationship was not great.” (Id.) At that time,
Licensee informed Officer Dunlap that she had consumed a couple drinks with
dinner, that her last drink had been at approximately 7 p.m., and that she takes
Valium. (Id. at 8A-9A.) Licensee also informed Officer Dunlap that, on a scale of
one to ten, with one being not impaired and ten being totally impaired, she
believed she was a five. (Id. at 9A.) Based upon all of the information available to
him, Officer Ward believed that Licensee “was under the influence of a controlled
substance and alcohol to [a] degree that rendered her incapable of safe driving[,]”
and he placed Licensee under arrest for driving under the influence of alcohol.


                                         3
(Id.) Licensee was placed in Officer Ward’s patrol vehicle and transported to
Lansdale Hospital for the purpose of obtaining a chemical test of her blood. (Id.)
             Officer Ward further testified that upon arrival at the hospital at
approximately 8:00 p.m., Licensee refused to get out of the patrol vehicle and
began kicking, screaming, and cursing at Officer Ward. (Id. at 9A, 30A.) Officer
Ward read the DL-26 Chemical Test Warnings to Licensee verbatim and also gave
Licensee the opportunity to read the warnings herself. (Id. at 9A-11A.) Licensee
continued to curse, scream, and kick at Officer Ward. (Id. at 9A.) Officer Ward
then asked Licensee to submit to a chemical test of her blood. (Id. at 11A.)
Licensee refused and Officer Ward transported her to the police station.
(Id. at 10A-11A.) Officer Ward testified on cross-examination that while Licensee
did not specifically state “I refuse this test[,]” she did state “I’m not doing this.”
(Id. at 11A-12A.) Officer Ward also testified on cross-examination that he was
aware that fellow officers had transported Licensee to Montgomery County
Emergency Services for a 302 commitment later that evening, but that he was not
aware that Licensee had been subject to a chemical test at that time. (Id. at 12A.)
Based upon the police report, Officer Ward believed that it was approximately
11:50 p.m., and three hours after he had read Licensee the DL-26 Chemical Test
Warnings, that Licensee was involuntarily committed to the hospital.
(Id. at 32A-33A.)
             On direct-examination, Licensee testified that she had a general
knowledge of the events of October 8, 2014, but that she did not remember specific
details. (Id. at 14A.) Licensee admitted that she had consumed alcohol prior to the
time of the collision.     (Id. at 14A-15A.)      Licensee also admitted that she
remembered kicking and screaming, but she explained that she was “in the throes


                                          4
of a very severe panic attack[,]” that she “suffer[s] from depression and anxiety[,]”
and that “it was a very overwhelming evening.”                        (Id. at 14A.)         On
cross-examination, however, Licensee testified that she did not believe that she had
informed Officer Ward or any other officer of her medical and mental conditions.
(Id. at 25A-26A.) Licensee testified further that at some point later that evening
she was taken to Montgomery County Emergency Services to be committed to the
hospital for mental health issues, where she was subject to a chemical test. (Id. at
15A, 20A, 26A-28A.)
              By order dated September 28, 2015, the trial court denied Licensee’s
appeal and reinstated the suspension of her driving privileges.2 In so doing, the
trial court concluded that DOT had made out its prima facie case supporting the
license suspension.      (Trial Ct. Decision at 5.)         The trial court reasoned that
although Licensee attempted to argue that her refusal was not knowing and
conscious because she allegedly suffered from mental health issues, Licensee
presented no medical testimony to establish that her mental health condition
precluded her from rendering a knowing and conscious refusal. (Id.) The trial
court noted that Licensee even admitted that alcohol played a role in her behavior
at the time that she refused the chemical testing, and that Licensee did not meet her
burden because she did not present a medical expert to rule out alcohol as a
contributing factor to her inability to offer a knowing and conscious refusal.3
(Id. at 5-6.) Licensee now appeals to this Court.

       2
        Following Licensee’s appeal to this Court, the trial court issued an opinion pursuant to
Pa. R.A.P. 1925(a) in support of its original order.
       3
        At the time of the hearing before the trial court, Licensee’s attorney also argued that
Licensee’s submission to a chemical test at the time of her 302 commitment at Montgomery
(Footnote continued on next page…)

                                               5
               On appeal,4 Licensee contends that the trial court erred in failing to
consider the bias, emotions, and apparent prejudice of Officer Ward in assessing
his credibility.5 Licensee does not, however, identify any specific testimony of
Officer Ward that she believes to be not credible, but rather, argues generally that


(continued…)

County Emergency Services constituted adequate compliance with Officer Ward’s request to
submit to chemical testing. (R.R. 16A-18A, 20A-21A, 24A-25A, 37A-39A.) In response,
DOT’s counsel argued that Officer Ward gave Licensee a reasonable time to submit to a
chemical test, that Licensee’s actions constituted a refusal, and that anything that occurred after
that time was irrelevant, because Licensee had already refused to submit to the chemical test.
(Id. at 18A-19A, 21A-24A, 39A-41A.) It appears that the trial court did not find merit to
Licensee’s argument, as this issue was not addressed by the trial court in its October 29, 2015
opinion.
       4
         This Court’s review of an order of a trial court denying a licensee’s statutory appeal
from a license suspension by DOT is limited to considering whether the trial court’s factual
findings are supported by competent evidence, and whether the trial court erred as a matter of
law or demonstrated a manifest abuse of discretion. McCloskey v. Dep’t of Transp., Bureau of
Driver Licensing, 722 A.2d 1159, 1161 (Pa. Cmwlth.), appeal denied, 740 A.2d 235 (Pa. 1999).
       5
          Our review of the record reveals that the trial court did not direct Licensee to file a
statement of errors complained of on appeal. The only issue raised by Licensee in her brief, and
countered by DOT in its brief, was whether the trial court accurately assessed the credibility of
DOT’s witness, Officer Ward. Nevertheless, in her reply brief, Licensee suggests for the first
time on appeal that the trial court erred in concluding that: (1) Officer Ward had reasonable
grounds to believe that Licensee was operating a motor vehicle while under the influence of
alcohol; (2) Licensee refused to submit to a chemical test; and (3) Officer Ward warned Licensee
that refusing to submit to testing would result in a license suspension. Rather than responding to
the issues raised by DOT in its brief, Licensee’s reply brief attempts to raise additional issues for
this Court’s consideration that were not addressed in Licensee’s questions presented or initial
brief. “An appellant has a general right to file a reply brief ‘to matters raised by appellee’s brief
not previously raised in appellant’s brief.’” Park v. Chronister, 617 A.2d 863, 871
(Pa. Cmwlth. 1992) (quoting Pa. R.A.P. 2113(a)). “A reply brief may not be used as an
opportunity to raise additional issues on appeal.” Id. We, therefore, decline to address these
issues on appeal and will only address the issue raised by Licensee relating to the credibility of
Officer Ward’s testimony.



                                                 6
there is no doubt that his testimony is not credible because of his emotional
perceptions and bias. It is well-settled that “[d]eterminations as to the credibility
of witnesses and the weight assigned to the evidence are solely within the province
of the trial court as fact-finder.” Reinhart v. Dep’t of Transp., Bureau of Driver
Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008). “As fact-finder, the trial court
may accept or reject the testimony of any witness in whole or in part.”                         Id.
“Conflicts in the evidence are for the trial court to resolve and are improper
questions for appellate review.”            Id.       Credibility determinations will not be
disturbed on appeal unless the trial court abuses its discretion. McKenna v. Dep’t
of Transp., Bureau of Driver Licensing, 72 A.3d 294, 298 (Pa. Cmwlth. 2013).
               Here, the trial court concluded that DOT had made out its prima facie
case for a license suspension by establishing that: (1) Officer Ward had reasonable
grounds for placing Licensee under arrest for driving under the influence;
(2) Officer Ward apprised Licensee of the consequences of refusing to submit to
chemical testing; (3) Officer Ward asked Licensee to submit to chemical testing;
and (4) Licensee refused to submit to chemical testing.6 Although the trial court
did not specifically state in its opinion that it found Officer Ward to be credible,
the trial court implied as much by recounting Officer Ward’s account of events on
October 8, 2014, and by concluding that DOT had established a prima facie case


       6
          In order to suspend a licensee’s driving privileges for refusing to submit to chemical
testing, DOT must establish the existence of the following elements: (1) the police arrested the
licensee based upon reasonable grounds to believe that the licensee was operating a motor
vehicle while under the influence of alcohol; (2) the police asked the licensee to submit to a
chemical test; (3) the licensee refused to submit to testing; and (4) the police warned the licensee
that refusing to submit to testing would result in license suspension. Bomba v. Dep’t of Transp.,
Bureau of Driver Licensing, 28 A.3d 946, 949 (Pa. Cmwlth. 2011).



                                                  7
for the suspension of Licensee’s driving privileges.       See Hasson v. Dep’t of
Transp., Bureau of Driver Licensing, 866 A.2d 1181, 1186 (Pa. Cmwlth. 2005)
(“[T]he trial court implicitly found Officer Emigh credible by crediting his account
of the events”). Finding no abuse of discretion by the trial court, we will not
disturb its credibility determinations on appeal.
             Accordingly, the trial court’s order is affirmed.




                                 P. KEVIN BROBSON, Judge




                                          8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Moya Rodriguez,                     :
                      Appellant     :
                                    :
           v.                       :   No. 1969 C.D. 2015
                                    :
Commonwealth of Pennsylvania,       :
Department of Transportation,       :
Bureau of Driver Licensing          :


                                  ORDER


           AND NOW, this 22nd day of June, 2016, the order of the Court of
Common Pleas of Montgomery County, dated September 28, 2015, is hereby
AFFIRMED.




                            P. KEVIN BROBSON, Judge
