J-S64002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                        v.

    JULIUS HARVEY

                             Appellant                 No. 203 MDA 2017


           Appeal from the Judgment of Sentence December 29, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000717-2016


BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                         FILED DECEMBER 08, 2017

        Appellant, Julius Harvey, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas following his conviction

for driving under the influence (“DUI”). Harvey contends the suppression court

erred as a matter of law when it concluded Harvey’s arrest was supported by

probable cause. Further, Harvey argues the Commonwealth presented

insufficient evidence to support his conviction. We affirm.

        On November 6, 2015, following a traffic stop and welfare check, Harvey

was charged through the filing of a criminal complaint with DUI-controlled



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   Former Justice specially assigned to the Superior Court.
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substance,1 possession of drug paraphernalia,2 and driving without a license.3

Harvey filed a motion to suppress. The court held a suppression hearing.

        The court aptly summarized the testimony presented at the suppression

hearing as follows:

               On October 16, 2015, at approximately 3:00 p.m., Sheena
        Zerbe-Monk was being driven home by a coworker from her job
        at Arden Courts off of Lingelstown Road. Ms. Monk and her driver
        were on Progress Avenue when Ms. Monk noticed a Cadillac in the
        right hand lane stopped at a green light. The front end of the
        Cadillac was in the left lane, and the driver’s head was against the
        window. Ms. Monk testified that many cars were passing and
        beeping. Ms. Monk said she got a good look at the driver and
        identified him as [] Harvey in the courtroom. Ms. Monk stated that
        she was worried that [Harvey] might have had a heart attack or
        stroke, so she asked her coworker if they should stop and check
        on him. Before they could do so, Ms. Monk observed the Cadillac
        take off and catch up to them. [Harvey] then cut right in front of
        the car Ms. Monk was riding in. She testified that they remained
        behind him and he was swerving, braking, slamming on the gas
        and driving “really crazy.” Ms. Monk was concerned about other
        drivers and kids, because it was right after school hours. Ms. Monk
        then watched [Harvey] as he pulled into a Wendy’s [parking lot].
        As Ms. Monk and her coworker continued to her apartment, which
        was a very short distance from the Wendy’s, Ms. Monk saw Officer
        Justin Doyle on foot patrol and “frantically ran up to him.” She
        asked the officer to please go find [Harvey] because she did not
        want him to get back on the road.


____________________________________________


175 Pa.C.S.A. § 3802(d)(2). Harvey was also initially charged with a second
count of DUI-controlled substance, pursuant to 75 Pa.C.S.A. § 3802(d)(1)(ii),
but this charge was later withdrawn by the Commonwealth. See N.T.,
Suppression/Bench Trial, 12/29/16, at 3.

2   75 Pa.C.S.A. § 780-113(a)(32).

3   75 Pa.C.S.A. § 1501(a).


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           Officer Doyle, a patrol officer with Susquehanna Township
     Police Department, confirmed Ms. Monk’s testimony that she
     jumped out of the car and told him she had been following a
     vehicle down Progress Avenue that had been driving erratically,
     and that the car had turned into Wendy’s. She told him she feared
     for other motorists on the roadway, gave him a description of the
     gold Cadillac, and relayed that the driver was a black man who
     appeared to be falling asleep at the wheel. Because Officer Doyle
     was too far from his vehicle, he called Officer Demetrius Glenn on
     the radio. After calling Officer Glenn, Officer Doyle responded to
     the Wendy’s as [Officer Glenn’s] backup officer. Once there,
     Officer Doyle observed [Harvey] half hanging out of his car; he
     had one foot out. His vehicle was parked in between two spots in
     a crooked fashion, and partially sticking out into the traffic way.
     When Officer Doyle initially approached [Harvey], it was unclear
     to him whether this was a medical issue or drug-induced behavior.
     Officer Doyle made the observation that there was no odor of
     alcohol. [Harvey’s] speech was extremely slurred. Officer Doyle
     asked [Harvey] his name several times and each time he was
     asked, he became more and more agitated. Officer Doyle asked
     [Harvey] if he had any medical problems. [Harvey] told him about
     some of his issues, including diabetes, so Officer Doyle called the
     EMS. [Harvey] was medically evaluated, and it was determined
     that his blood sugar was at a normal level, and his blood pressure
     was elevated, but everything else was fine.

            When asked what conclusions Officer Doyle made based on
     his observations of [Harvey], Officer Doyle said that based on his
     [seven years of] training and experience, he believed [Harvey]
     was under the influence of a controlled substance, and that his
     behavior led him to believe that it was crack cocaine. Officer Doyle
     clarified that the combination of [Harvey’s] elevated blood
     pressure, his agitation, slurred speech, the inability to stay on one
     topic, and what he was told about his driving supported his
     conclusion that [Harvey] was high on crack cocaine. Officer Doyle
     also testified that he has had experience in DUI’s that involve
     drugs instead of alcohol. Specifically, he estimated observing the
     effect of crack cocaine in drivers on approximately ten occasions.
     Moreover, Officer Doyle is a diabetic himself, and personally
     experienced in the effects of a diabetic episode. After [Harvey]
     was arrested, the inventory search of his car revealed money
     strewn throughout the car ($139 in total), and a crack pipe in the
     center console with residue that tested positive for crack cocaine.


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              Officer Demetrius Glenn, a patrol officer with the
       Susquehanna Township Police, testified that on the afternoon in
       question, Officer Doyle made contact with him and explained that
       there was a vehicle displaying erratic behavior that was possibly
       in the parking lot of Wendy’s. Officer Glen’s testimony mirrored
       Officer Doyle’s testimony. He initially believed that [Harvey] either
       had a medical issue or that he was under the influence of drugs.
       Upon learning of [Harvey’s] diabetic issue, Officer Glenn testified
       that based on his personal experience (responding to EMS calls
       for diabetics), diabetics are either lethargic or very aggressive to
       the point that they are fighting. Officer Glenn found his behavior
       to be indicative of crack cocaine use.

Trial Court Rule 1925(a) Opinion, 5/17/17, at 1-4 (internal citations to the

record omitted).

       The court denied Harvey’s suppression motion, concluding the police

officers had probable cause to arrest Harvey without a warrant. The parties

immediately proceeded to a bench trial, following which the trial court

convicted Harvey of DUI-controlled substance.4 Harvey received a sentence of

thirteen days to six months’ imprisonment.5 This timely appeal follows.




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4The trial court dismissed the charges of possession of drug paraphernalia
and driving without a license, citing the Commonwealth’s failure to present
any evidence relating to these charges. See N.T., Suppression/Bench Trial,
12/29/16, at 52.

5 While the trial court clearly sentenced Harvey to thirteen days to six months’
imprisonment at his bench trial, a clerical error resulted in the imposition of a
sentence of six to thirteen months’ imprisonment. See N.T.,
Suppression/Bench Trial, 12/29/16, at 53; Docket Entry, 12/29/16. Following
the filing of Harvey’s appeal, the trial court corrected this patent clerical error.
See Order, 4/18/17. See also Commonwealth v. Klein, 781 A.2d 1133,
1135 (Pa. 2011) (holding that while a trial court is typically divested of
jurisdiction to correct an order after a notice of appeal has been filed, a trial
court may correct a “patent defect or mistake in the record”).

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      On appeal, Harvey raises two issues. First, he avers the trial court erred

in denying his pre-trial motion to suppress. Next, that his conviction for DUI-

controlled substance was not supported by sufficient evidence.

      Turning to Harvey’s first issue on appeal,

      [o]ur standard of review in addressing a challenge to a trial court’s
      denial of a suppression motion is whether the factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. When reviewing the ruling of the
      suppression court, we must consider only the evidence of the
      prosecution and so much of the evidence of the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citation

omitted). Additionally, “[i]t is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given to

their testimony. The suppression court is free to believe all, some or none of

the evidence presented at the suppression hearing.” Commonwealth v.

Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (citation omitted).

      Harvey does not contest the trial court’s findings of fact. Rather, he

contests the trial court’s legal conclusion that the facts supported the police

officer’s probable cause determination. See Appellant’s Brief, at 12, 14-20.

Specifically, Harvey contends the police officers lacked probable cause to

arrest him for DUI-controlled substance as they did not personally observe his

driving, did not note a smell of drugs or alcohol on Harvey or in his vehicle,

and did not perform field sobriety tests at the scene. See id., at 16-18.


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Instead, Harvey alleges that the police only decided he must be under the

influence when they looked at his criminal history. See id., at 17-20. Further,

Harvey maintains that his behavior at the scene is as indicative of a medical

reaction, as a reaction to a controlled substance. See id., at 19-20.

      “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 matter, a police officer has probable cause to make a warrantless

arrest “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) (citation omitted).

      Probable cause is determined by the totality of the circumstances. See

Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (en banc).

As such, “a police officer may utilize both his experience and personal

observations to render an opinion as to whether a person is intoxicated.” Id.

(citations and quotation marks omitted). Further, while field sobriety tests are

helpful in developing a police officer’s probable cause for arrest, “reasonable

grounds to arrest [for suspicion of DUI] does not require the failure of field

sobriety tests.” Commonwealth v. Slonaker, 795 A.2d 397, 402 (Pa. Super.

2002) (citation and footnote omitted). Finally, “[p]robable cause exists when

criminality is one reasonable inference; it need not be the only, or even the




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most likely, inference.” Commonwealth v. Quiles, 619 A.2d 291, 298 (Pa.

Super. 1993) (en banc) (citations omitted).

       Here, the totality of the circumstances, when viewed through the lens

of the officers’ experience and personal observations, supports their

determination that probable cause existed to arrest Harvey for DUI-controlled

substance. Ms. Monk testified she observed Harvey apparently sleeping behind

the wheel in the middle of an active intersection. When Harvey awoke, Ms.

Monk observed him swerving, stepping on the brake, and driving erratically.

Ms. Monk’s statements were enough for Officer Doyle and Officer Glenn to

check on Harvey in the Wendy’s parking lot. See Commonwealth v.

Anthony, 977 A.2d 1182, 1187-1188 (Pa. Super. 2009) (stating that police

can rely upon information supplied by an identified citizen about defendant’s

driving behavior in determining whether reasonable suspicion exists to stop

car based on suspected DUI).

       Even though the police officers did not administer field sobriety tests,

both officers observed Harvey at the scene—and noted that Harvey’s

agitation, slurred speech, inability to stay on one topic, and elevated blood

pressure was indicative of either a person experiencing a diabetic event or

high on crack cocaine.6 After the EMS found that Harvey’s blood sugar was in




____________________________________________


6Officer Glenn did not ever believe Harvey was suffering from a diabetic event
because his actions mirrored those of an individual high on crack cocaine. See
N.T., Suppression/Bench Trial, 12/29/16 at 43.

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a normal range, the officers concluded, based on their experience, that Harvey

had been driving under the influence of crack cocaine.

      Harvey argues this evidence could have just as easily been evidence of

a medical event. However, assignment of credibility and weight to the

evidence is squarely within the suppression court’s discretion. We cannot

conclude the suppression court abused its discretion in finding both officers

credible. As such, the circumstances to which the officers testified was

sufficient to establish probable cause to arrest Harvey for DUI. See Hilliar,

943 A.2d at 994. Accordingly, Harvey’s first issue on appeal merits no relief.

      In his second and final issue, Harvey argues the evidence of record is

insufficient to support his conviction for DUI. Specifically, he claims the

Commonwealth failed to prove that his ability to drive safely was impaired by

a controlled substance beyond a reasonable doubt, because the officers did

not personally observe him driving, did not smell drugs or alcohol on Harvey’s

person or in his vehicle, and did not perform field sobriety tests.

      When examining a challenge to the sufficiency of the evidence, our

standard of review is whether, when viewed in a light most favorable to the

verdict winner, the evidence at trial and all reasonable inferences drawn

therefrom is sufficient for the trier or fact to find that each element of the

crimes   charged    is   established   beyond    a   reasonable   doubt.   See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The

Commonwealth may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial evidence.”

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Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) (citation

omitted).

      “[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). Any doubt

raised as to the accused’s guilt is to be resolved by the fact-finder. See id.

“As an appellate court, we do not assess credibility nor do we assign weight

to any of the testimony of record.” Commonwealth v. Kinney, 863 A.2d

581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not disturb

the verdict “unless the evidence is so weak and inconclusive that as a matter

of law no probability of fact may be drawn from the combined circumstances.”

Bruce, 916 A.2d at 661 (citation omitted).

      Harvey was convicted of DUI-controlled substance under § 3802(d)(2)

of the Vehicle code, which provides:

       (d) Controlled Substances – An individual may not drive, operate
      or be in actual physical control of the movement of a vehicle under
      any of the following circumstances:

                                    *****

            (2) The individual is under the influence of a drug or
            combination of drugs to a degree which impairs the
            individual’s ability to safely drive, operate or be in actual
            physical control of the movement of the vehicle.

      Ms. Monk reported observing Harvey apparently sleeping at the wheel

of his car in the middle of a roadway. Harvey then proceeded to drive

erratically, swerving, braking and slamming on the brakes, before pulling into

a parking lot. When the officers approached him, they noted he was agitated,

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exhibited extremely slurred speech, and could not stay on one topic. Both

officers testified that, based on their experience, this behavior was indicative

of an individual under the influence of crack cocaine. Further, after Harvey

was arrested and his car was impounded, the officers testified to finding a

crack pipe in the center console with crack cocaine residue therein.

      In an effort to rebut this evidence, Harvey attempts to compare his case

to the matter in Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super.

2007), where a panel of this Court found insufficient evidence for a DUI-

controlled substance conviction. Harvey argues that, like the defendant in

Etchison, his conviction should be found to rest on an insufficient basis as

the Commonwealth failed to present lab tests to prove that Harvey was under

the influence of drugs at the time he was arrested.

      Harvey misinterprets Etchison. There, the panel’s finding of insufficient

evidence was predicated on the Commonwealth’s failure to present evidence

of impaired driving, not a lack of evidence of drugs in the blood stream. See

916 A.2d at 1172. Here, the Commonwealth presented sufficient evidence of

Harvey’s impaired driving through the testimony of Ms. Monk.

      The testimony provided by Ms. Monk, and Officers Doyle and Glenn was

sufficient to prove the elements of DUI-controlled substance beyond a

reasonable doubt. Accordingly, pursuant to our standard of review, we find

that Harvey is not entitled to relief on this claim.

      Judgment of Sentence affirmed.


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     Judge Shogan joins the memorandum.

     Justice Fitzgerald concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




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