J-A25008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    TYRONE GALVESTON MORRIS

                             Appellant                 No. 385 EDA 2017


      Appeal from the Judgment of Sentence imposed December 27, 2016
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No: CP-46-CR-0003544-2015

BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                             FILED APRIL 12, 2018

        Appellant, Tyrone Galveston Morris, appeals from his judgment of

sentence for driving under the influence of a controlled substance (“DUI”), 75

Pa.C.S. § 3802(d)(2). We affirm.

        On February 25, 2015, Appellant was arrested for DUI and related

charges following a traffic stop in Bala Cynwyd, Pennsylvania. Appellant filed

a motion to suppress, which the trial court denied after two days of hearings.

Following a bench trial on December 27, 2016, the trial court found Appellant

guilty of DUI -- driving under the influence of a controlled substance and guilty

of driving without rear lights, a summary offense. The trial court sentenced



____________________________________________


*   Former Justice specially assigned to the Superior Court.
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Appellant to seventy-two hours to six months in jail for DUI and fined him

$25.00 for the summary offense. Appellant filed a timely notice of appeal,

and both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:

      I. The trial court erred in its denial of [Appellant’s] motion to
      suppress the field sobriety tests as there was no reasonable
      grounds to believe the arresting officer had probable cause to
      warrant [Appellant’s[ stop.

      II. The trial court erred in finding there was sufficient evidence to
      maintain     [Appellant’s]    conviction   of   [DUI]     when   the
      Commonwealth failed to establish he was under the influence to a
      degree which impaired his ability to safely operate a vehicle.

Appellant’s Brief at 7.

      In his first argument, Appellant contends that the arresting officer

lacked probable cause to stop Appellant’s vehicle. We disagree.

      We review a challenge to an order denying suppression of evidence as

follows:

      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.   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. 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. Where,
      as here, 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


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      to the facts. Thus, the conclusions of law of the courts below are
      subject to our plenary review.

Commonwealth v. Baker, 24 A.3d 1006, 1015 (Pa. Super. 2011) (internal

citations and quotation marks omitted). Our scope of review is limited to the

record of the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      The trial court summarized the evidence adduced during Appellant’s

suppression hearing as follows:

      Officer Kondan had worked for the Lower Merion Police
      Department for eight years as a Road Patrol Officer on the night
      of the stop. On February 25, 2015, the officer testified that while
      driving [n]orthbound, he saw a blue Chevy Tahoe drive
      [s]outhbound[,] and when the officer looked in his side view
      mirror[,] he noticed the rear registration plate light was not
      working from two lanes away, approximately twenty-five feet.
      The officer made a U-turn and stopped the vehicle. When the
      officer approached, he encountered [Appellant].

      The Commonwealth played a video from the night in question, but
      [the video did not make clear] whether the plate was illuminated
      . . . as the headlights of the officer’s car illuminated the license
      plate. However, the officer testified that he verified that the lights
      were out when he “rolled up directly behind the vehicle.” This
      Court found that the officer had no reason to lie and was credible.

Trial Court Opinion, 3/9/17, at 4 (citation omitted). Having carefully reviewed

the record, we conclude that the record supports the trial court’s factual

findings.

      The Vehicle Code provides that “[w]henever a police officer . . . has

reasonable suspicion that a violation of this title is occurring or has occurred,

he may stop a vehicle.” 75 Pa. C. S. § 6308 (b). The reasonable suspicion

standard, however, applies only to stops that serve an investigatory purpose.


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When the suspected violation of the Vehicle Code does not require

investigation, the stop requires probable cause. Commonwealth v. Feczko,

10 A.3d 1285, 1290 (Pa. Super. 2010) (quoting Commonwealth v. Chase,

960 A.2d 108, 115-16 (Pa. 2008)) (“A vehicle stop based solely on offenses

not investigable cannot be justified by a mere reasonable suspicion . . . An

officer must have probable cause to make a constitutional vehicle stop for

such offenses”).

      In this case, the lighting violation did not require further investigation;

the light was not working when the officer saw it. Thus, he needed probable

cause to initiate the stop. “[P]robable cause does not require certainty, but

rather exists when criminality is one reasonable inference, not necessarily

even the most likely inference.” Commonwealth v. Lindblom, 854 A.2d

604, 607 (Pa. Super. 2004)).      The trial court properly denied suppression

because Officer Kondon had probable cause to stop Appellant for violating the

general lighting requirements of the Vehicle Code, which requires that

“[e]very vehicle be equipped with a rear lighting system including [among

others, a] license plate light[.]” 75 Pa. C.S. § 4303(b). Officer Kondon had

probable cause to believe that Appellant violated Section 4303(b) when he

observed that Appellant’s rear license plate light was not functioning from

approximately twenty-five feet away. Officer Kondon also followed Appellant’s

car until he was directly behind the vehicle and verified that neither of the rear

lights were functioning. See Commonwealth v. Salter, 121 A.3d 987, 993


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(Pa. Super. 2015) (officer had probable cause to stop defendant when he

observed defendant’s license plate lamp was not functioning).                 Thus,

Appellant’s first argument fails.

      In his second argument, Appellant challenges the sufficiency of the

evidence underlying his conviction for DUI.

      When evaluating a sufficiency claim,

      our standard is whether, viewing all the evidence and reasonable
      inferences in the light most favorable to the Commonwealth, the
      factfinder reasonably could have determined that each element of
      the crime was established beyond a reasonable doubt. This Court
      considers all the evidence admitted, without regard to any claim
      that some of the evidence was wrongly allowed. We do not weigh
      the evidence or make credibility determinations. Moreover, any
      doubts concerning a defendant’s guilt were to be resolved by the
      factfinder unless the evidence was so weak and inconclusive that
      no probability of fact could be drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010).

      Section 3802(d)(2) provides:

      An individual may not drive, operate or be in actual physical
      control of the movement of a vehicle under any of the following
      circumstances . . . [t]he 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.

Expert testimony is not necessary in prosecutions under this statute.          Our

Supreme Court has held:

      [W]e decline to read into subsection 3802(d)(2) a mandatory
      requirement for expert testimony to establish that the defendant’s
      inability to drive safely was caused by ingestion of a drug, even if
      it is a prescription drug, or drug combination. We do not dispute
      that in some cases, depending on the specific facts and
      circumstances, expert testimony may be helpful, or perhaps even

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      necessary, to prove causation under subsection 3802(d)(2), but
      we decline to hold that the need for expert testimony is inherent
      in the statutory provision and thus mandatory in all cases.

Commonwealth v. Griffith, 32 A.3d 1231, 1238 (Pa. 2011).                    The

observations of a police officer can be sufficient to sustain a conviction under

this provision. Id. at 1240 (evidence was sufficient to support conviction for

DUI under Section 3802(d)(2), where experienced police officer closely

observed defendant’s behavior, demeanor, unsteadiness, and inability to

perform field sobriety tests, defendant admitted taking one prescription

medication in morning of day of her arrest, and two other Schedule IV

controlled substances were detected in her blood); Commonwealth v.

Graham, 81 A.3d 137, 146-47 (Pa. Super. 2013) (evidence was sufficient to

support finding that defendant’s impairment which rendered her unable to

drive safely was caused by the combined influence of alcohol and a drug or

combination of drugs; police officer who had received extensive training with

respect to recognizing signs and behaviors of individuals driving under the

influence observed defendant’s erratic driving behavior, unsteadiness, and

inability to perform field sobriety tests, defendant refused to submit to a

chemical test of her blood and justified her refusal based upon her fear that

her prescription medications were going to “come up” in her blood test, and

defendant admitted that she took three prescription medications on day she

was arrested to treat her bipolar disorder and depression).




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      In this case, the trial court accurately summarized the evidence as

follows:

      Officer Kondan had eight years of experience and training in field
      sobriety tests including an advanced field sobriety class for drug
      impaired driving. The officer had approximately three hundred
      arrests of which approximately one hundred were drug related.
      Officer Kondan stopped the vehicle because the rear license plate
      light was out in violation of the Motor Vehicle Code and proceeded
      to approach the driver. [Appellant] appeared to be impaired when
      the officer approached the car, [his] eyes were bloodshot and
      glassy, his speech was slightly slurred, and his hands were
      trembling. The officer detected the odor of fresh and burnt
      marijuana inside the vehicle. When questioned, [Appellant]
      eventually stated that he had smoked marijuana earlier in the day
      in the back of the car after originally denying smoking. Officer
      Kondan later found scattered traces of marijuana on the floor of
      the vehicle.

      Officer Kondan had [Appellant] perform the Horizontal Gaze
      Nystagmus Test and the nine step walk and turn test. [Appellant]
      lost his balance during the instructional period, didn’t follow
      instructions, started the test too soon, and didn’t perform the
      correct turn. Officer Kondan also indicated that during the one-
      leg stand, [Appellant] missed a count and completed the test too
      early. [Appellant] also failed the Lack of Convergence test when
      his right eye failed to converge on the stimulus. All signs were
      consistent with the use of marijuana. Finally, during the Romberg
      balance test, [Appellant] had eyelid tremors which are indicative
      of marijuana use according to Officer Kondan’s training and
      experience. Therefore, Officer Kondan believed [Appellant] was
      too impaired to safely operate the vehicle. [Appellant] did not
      violate any traffic law other than the rear license plate light being
      out during the time the officer observed him, and [Appellant]
      claimed he was nervous and had been working all day which he
      claimed accounted for the shaking of his hands and bloodshot
      eyes.

      Officer Hatton also responded to the location where [Appellant]
      was stopped. Office Hatton observed shaking hands, bloodshot
      and glassy eyes, slurred speech, and an odor of burnt marijuana
      coming from [Appellant]’s person and his car. Officer Hatton had
      been a police officer for slightly less than five years, had

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     conducted around fifteen to twenty DUI arrests and around a third
     of those were drug related. Officer Hatton also had field sobriety
     test training and observed the testing conducted by Officer
     Kondan, and based on his observations felt that [Appellant] was
     impaired to the point where it would be unsafe for him to operate
     a car.

Trial Court Opinion, 3/9/17, at 9-10 (citations omitted).   This evidence is

equivalent to the evidence adduced against the defendants in Griffith and

Graham. Accordingly, we conclude that the evidence is sufficient to sustain

Appellant’s conviction under Section 3802(d)(2).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/18




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