J-A24036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHAWN PAUL DIGNAZIO,

                            Appellant                  No. 3205 EDA 2013


            Appeal from the Judgment of Sentence October 22, 2013
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0001757-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED NOVEMBER 06, 2014

        Appellant, Shawn Paul Dignazio, appeals from the judgment of

sentence entered on October 22, 2013, following his conviction of driving

under the influence (DUI), highest rate, third offense.1 The trial court also

found Appellant guilty of driving while license suspended, DUI related. 2

Prior to trial, the Commonwealth withdrew all other charges.         (See N.T.

Trial, 10/22/13, at 1).       On appeal, Appellant challenges the denial of his

motion to suppress and the admission of the results of the blood alcohol

content (BAC) test. After review, we affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(c), 3803(b)(4), and 3804(c)(3).
2
    75 Pa.C.S.A. § 1543(b).
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     We take the underlying facts in this matter from the trial court’s

February 10, 2014 opinion.

           On or about June 22, 2012 at approximately 2:30 a.m.
     Troopers [Martin] Wiley and [Patrick] Wade of the Pennsylvania
     State Police (PSP), Troop K, were on patrol in a marked vehicle.
     They received a radio report of a “theft in progress” at the Media
     Diner.    It was reported that a heavyset white male left the
     Media Diner without paying for food. . . . The suspect was
     driving a dark Chevy Tahoe with dark windows toward Chester
     on Route 352. The troopers were stationary at the side of the
     road on Route 352 when [Appellant], traveling from the direction
     of the nearby Media Diner toward Chester and driving at a fast
     rate of speed, passed in his Black Chevy Tahoe.

           With overhead lights and sirens activated, the troopers
     pursued [Appellant]. After following for about half a mile[,] they
     caught up to his vehicle. [Appellant] put on his turn signal and
     slowly pulled to the side of the road and entered a parking lot.
     During this period no motor vehicle violations were observed by
     the troopers. Following the stop[,] the patrol vehicle’s speaker
     system was activated and [Appellant] was ordered to exit the
     vehicle, to turn away from the troopers, to step away from the
     vehicle and to lie on his stomach.          [Appellant] did not
     immediately comply but exited the vehicle with both hands
     raised and walked toward the troopers. Eventually, after being
     ordered down several times, he responded by getting down to
     his knees. The troopers could not see into [Appellant’s] vehicle
     and had their guns drawn. He was handcuffed and his pockets
     were searched.

            As he handcuffed [Appellant,] Trooper Wiley detected the
     odor of alcohol on [Appellant]. Trooper Wiley asked [Appellant]
     for his name, date of birth and “where he was coming from.” He
     responded that he was coming from the Free Mason’s Lodge
     Meeting and stated that his license was suspended. [Appellant]
     told Trooper Wiley that his passport was in the center console of
     his vehicle. Trooper Wiley observed that [Appellant’s] speech
     was slow and slurred when he responded and his eyes were
     blood shot. The odor of alcohol emanated from his person.
     [Appellant] was placed in the troopers’ patrol vehicle. The odor
     of alcohol became stronger when [Appellant] was within the
     confines of the troopers’ vehicle. He was transported to the

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     Media Diner where he was identified.         Thereafter he was
     transported to the PSP Media barracks and a BAC breath test
     was administered.     No field sobriety tests were performed.
     Trooper Wiley testified that at the point of the stop he did not
     know “the severity of the theft” and that he did not feel it would
     be safe to remove the handcuffs and conduct field sobriety tests
     under the circumstances.

           Trooper Wade, a certified operator administered the test
     using the Datamaster DMT after a twenty minute period during
     which [Appellant] was observed. The Datamaster DMT that was
     used was properly certified as accurate in accordance with
     applicable Department of Health and Department of
     Transportation regulations and was tested and certified as falling
     within the acceptable range for calibration. The sample solution
     used was also analyzed and certified accurate. During the
     waiting period [Appellant] did not consume alcohol and did not
     regurgitate. [Appellant] was instructed to blow into the machine
     through a clean plastic mouthpiece and to blow out a “strong,
     steady breath[] until he was told to stop.” On his first few
     attempts he stopped before giving a complete breath sample.
     [Appellant] was told “to stop playing around with the machine”
     and not to stop breathing before providing a full sample. He was
     also advised that his failure to provide a full sample would be
     considered a refusal and that he would face more severe
     penalties if he failed to provide a sample. Thereafter [Appellant]
     provided two complete samples and the results of testing, BAC
     levels of .185 and .187. are reported in Exhibit C-5.

            The DataMaster DMT Owners Guide [ ] explains that an
     “Invalid Sample” message will appear where a reading of BAC
     decreases during a continuous exhalation. It explains that [t]he
     alcohol measurement of breath is taken from the later portion of
     the exhaled breath sample that approximates deep lung air and
     if the breath sample is exhaled continuously. This reading can
     be expected to rise, quickly at first, then more slowly as the
     concentration [of alcohol in the breath] becomes more uniform.
     If a reading decreases, for any reason the test is terminated and
     the message “Invalid Sample” is displayed. Additionally, in the
     Owner’s Manual it is explained that during the exhalation of
     breath the DataMaster measures the alcohol level at a rate of
     four times every second, it averages every two consecutive
     readings and compares each average to the last average. If, in
     the course of the test, any three sequential averages are

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       determined to be decreasing when preceded by an upward
       reading, the sample is determined to be not as expected and the
       test is terminated as an “Invalid Sample.” Exhibit C-5 shows the
       results of a completed test and there is no indication that an
       “Invalid Sample” message invalidates these results. [Appellant]
       offered no evidence that warrants a contrary conclusion.

(Trial Court Opinion, 2/10/14, at 2-5) (some quotation marks and some

internal citations omitted).

       On July 5, 2013, Appellant filed an omnibus pre-trial motion seeking,

in part, to suppress evidence because the state troopers allegedly lacked

either probable cause or reasonable suspicion to stop his motor vehicle.

(See Omnibus Pretrial Motion, 7/05/13, at 3).      Appellant also alleged that

the BAC results were inadmissible because the troopers allegedly obtained

invalid samples. (See id. at 8-12).

       The trial court held a suppression hearing on August 6, 2013. At the

start of the suppression hearing, Appellant orally amended his motion to

include an allegation that the state troopers lacked probable cause to arrest

him.   (See N.T. Suppression Hearing, 8/06/13, at 6).       Further, Appellant

withdrew his claim to suppress the results of the breath test without

prejudice to its later renewal via a motion in limine. (See id. at 6-7). On

October 11, 2013, the trial court issued an order suppressing certain

statements Appellant made to the police but otherwise denying his motion.

(See Order, 10/11/13, at 1).

       On October 22, 2013, a stipulated non-jury trial took place.         As

previously stated, the trial court found Appellant guilty of DUI and of driving

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with a suspended license, DUI related.3                 The trial court immediately

proceeded to sentencing, and sentenced Appellant to an aggregate term of

incarceration of not less than one nor more than two years.

        The instant, timely appeal followed. On November 21, 2013, the trial

court ordered Appellant to file a concise statement of errors complained of

on appeal.      See Pa.R.A.P. 1925.            After receiving an extension of time,

Appellant filed a timely concise statement on December 26, 2013.                See

Pa.R.A.P. 1925(b). The trial court issued an opinion on February 10, 2014.

See Pa.R.A.P. 1925(a).

        On appeal, Appellant raises the following questions for our review:

        1. Did the [trial] court err in refusing to suppress evidence
           obtained as a result of the Appellant’s unlawful arrest for the
           offenses of [t]heft and/or DUI?

        2. Did the [trial] court err in allowing the Commonwealth to
           enter into evidence the results of [a] breathalyzer test
           conducted on a DataMaster DMT based on invalid breath
           tests?

(Appellant’s Brief, at 3).

        On appeal, Appellant challenges the denial of his motion to suppress,

arguing that the state troopers lacked probable cause to arrest him. (See id.

at 12-17). When we review a ruling on a motion to suppress, “[w]e must

determine whether the record supports the suppression court’s factual

findings and the legitimacy of the inferences and legal conclusions drawn
____________________________________________


3
    75 Pa.C.S.A. § 1543(b)(1.1)(ii).



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from those findings.”   Commonwealth v. Holton, 906 A.2d 1246, 1249

(Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation

omitted). Because the suppression court in the instant matter found for the

prosecution, we will consider only the testimony of the prosecution’s

witnesses and any uncontradicted evidence supplied by Appellant. See id.

If the evidence supports the suppression court’s factual findings, we can

reverse only if there is a mistake in the legal conclusions drawn by the

suppression court. See id.

             [Initially, we] observe that the forcible stop of a vehicle
      constitutes an investigative detention such that there must be
      reasonable suspicion that illegal activity is occurring. Police are
      justified in stopping a vehicle when relying on information
      transmitted by a valid police bulletin. Moreover, even where the
      officer who performs the stop does not have reasonable
      suspicion, the stop is nonetheless valid if the radio officer
      requesting the stop has reasonable suspicion.

Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013)

(citation omitted).

            Probable cause is made out when the facts and
      circumstances which are within the knowledge of the officer at
      the time of the arrest, and of which he has reasonably
      trustworthy information, are sufficient to warrant a man of
      reasonable caution in the belief that the suspect has committed
      or is committing a crime. The question we ask is not whether
      the officer’s belief was correct or more likely true than false.
      Rather, we require only a probability, and not a prima facie
      showing, of criminal activity. In determining whether probable
      cause exists, we apply a totality of the circumstances test.




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

and quotation marks omitted, emphasis in original). Further, our Supreme

Court has stated that:

     [p]robable cause is a practical, nontechnical conception: it is a
     fluid concept—turning on the assessment of probabilities in
     particular factual contexts not readily, or even usefully, reduced
     to a neat set of legal rules. . . . [T]he very reason we adopted
     this approach, namely, the need to be mindful of the notion of
     probable cause as based on the factual and practical
     considerations of everyday life on which reasonable and prudent
     men, not legal technicians, act.

Commonwealth v. Ruey, 892 A.2d 802, 815-16 (Pa. 2006) (citations and

quotation marks omitted).

     Recognizing these principles, this Court has stated:

           [p]robable cause does not involve certainties, but rather
     the factual and practical considerations of everyday life on which
     reasonable and prudent men act. It is only the probability and
     not a prima facie showing of criminal activity that is a standard
     of probable cause. To this point on the quanta of evidence
     necessary to establish probable cause . . . finely tuned standards
     such as proof beyond a reasonable doubt or by a preponderance
     of the evidence, useful in formal trials, have no place in the
     [probable-cause] decision.

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005),

appeal denied, 920 A.2d 831 (Pa. 2007) (quotation marks and citations

omitted).

     Here, the record shows that, at 2:45 a.m., State Police Troopers Wiley

and Wade receive a radio dispatch that a heavyset, white male had left the

Media Diner without paying, and that the man was driving a dark-colored

Chevrolet SUV, possibly a Tahoe. (See N.T. Suppression Hearing, 8/06/13,

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at 11-13, 63-64). Dispatch informed the troopers that the SUV had left the

parking lot of the Media Diner at Routes 1 and 352 and headed south

towards Chester.   (See id. at 14, 64).    The troopers traveled south and

positioned their vehicle, so the SUV would pass them. (See id. at 14-15,

64-65). When they observed the SUV, the only vehicle on the road at the

time, passing at a fast rate of speed, the troopers pulled out behind it and

activated their lights and sirens. (See id. at 15-16, 65). The SUV did not

immediately pull over but continued to drive for a half a mile to one mile

before pulling off the road. (See id. at 16, 65). Thus, because the basis for

the stop was information from a valid police bulletin, the troopers had the

necessary reasonable suspicion of criminal activity.     See Washington,

supra at 802.

     When the SUV eventually stopped, the troopers, concerned for their

safety because they believed Appellant was trying to flee, activated the

speaker and requested that Appellant exit the vehicle.            (See N.T.

Suppression Hearing, 8/06/13, at 16, 65). Trooper Wiley ordered Appellant

to turn around, face away from the patrol unit and get down on his knees,

but Appellant did not comply.    (See id. at 17, 66).    Trooper Wiley then

directed Appellant to get down on his stomach, however, Appellant only got

down onto his knees. (See id.). Appellant matched the description given

by the dispatcher. (See id.). Trooper Wade then checked to make certain

there was no one else in the vehicle and requested backup. (See id. at 66-


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J-A24036-14


67). As Trooper Wiley approached Appellant to handcuff him, he noticed a

strong odor of alcohol emanating from Appellant’s breath and body. (See

id. at 18-19).   Trooper Wiley also observed that Appellant’s eyes were

bloodshot and glassy and his speech was slow and slurred. (See id. at 19).

Trooper Wiley handcuffed Appellant and put him in the police car to take him

over to the Media Diner; Trooper Wiley noticed that the odor of alcohol

continued to emanate from Appellant.      (See id. at 19-20, 67).     Trooper

Wiley did not conduct any field sobriety tests because of Appellant’s initial

failure to pull over his SUV and because he was unsure of the severity of the

theft in question, and, therefore, Trooper Wiley did not feel safe in taking

Appellant out of handcuffs. (See id. at 22).

      Initially, we note that this Court does not require the conducting of

field sobriety tests in order to arrest an individual for DUI.            See

Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa. Super. 2012). Here,

Appellant’s car matched the description of the vehicle in the police bulletin,

he was the only person traveling on the road at 2:45 a.m., he matched the

description of the person who committed the theft, he failed to obey police

commands promptly, smelled strongly of alcohol, had glassy and bloodshot

eyes, and slurred and slow speech.     This was sufficient probable cause to

arrest him on suspicion of theft/DUI. See id. at 817-18; Commonwealth

v. Angel, 946 A.2d 115, 118 (Pa. Super. 2008) (sufficient probable cause to

arrest on suspicion of DUI, even in absence of field sobriety tests, where


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defendant had slurred speech, smelled of alcohol, and had glassy eyes).

Appellant’s first claim lacks merit.

      In his second claim, Appellant contends that the trial court erred in

denying his motion in limine to suppress the results of an invalid breath test.

(See Appellant’s Brief, at 18-21).      Specifically, Appellant argues that the

first test resulted in an invalid sample. (See id. at 20). We disagree.

      Initially, Appellant did not properly preserve this issue for appeal. As

discussed above, Appellant withdrew this claim without prejudice to the filing

of a motion in limine at the suppression hearing.       (See N.T. Suppression

Hearing, 8/06/13, at 6-7). In its February 10, 2014 opinion, the trial court

stated that Appellant had raised the matter via a motion in limine.        (See

Trial Ct. Op., at 7). However, neither Appellant nor the trial court indicates

where Appellant preserved this issue, and we have been unable to locate

this motion in limine in our review of the record.       It is not this Court’s

responsibility to comb through the record seeking the factual underpinnings

of an appellant’s claim.    See Commonwealth v. Mulholland, 702 A.2d

1027, 1034 n.5 (Pa. 1997) (“In a record containing thousands of pages, this

court will not search every page to substantiate a party’s incomplete

argument”).    Accordingly, we find that Appellant waived this claim.      See

Pa.R.A.P. 302(a); Pa.R.A.P. 2117(c); and Pa.R.A.P. 2119(e).

      Moreover, the claim is without merit.

           A motion in limine is a procedure for obtaining a ruling on
      the admissibility of evidence prior to or during trial, but before

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     the evidence has been offered. A trial court’s decision to grant
     or deny a motion in limine is generally subject to an evidentiary
     abuse of discretion standard of review.

            The admissibility of evidence is at the discretion of the trial
     court and only a showing of an abuse of that discretion, and
     resulting prejudice, constitutes reversible error.

           The term discretion imports the exercise of judgment,
     wisdom and skill so as to reach a dispassionate conclusion,
     within the framework of the law, and is not exercised for the
     purpose of giving effect to the will of the judge. Discretion must
     be exercised on the foundation of reason, as opposed to
     prejudice, personal motivations, caprice or arbitrary actions.
     Discretion is abused when the course pursued represents not
     merely an error of judgment, but where the judgment is
     manifestly unreasonable or where the law is not applied or
     where the record shows that the action is a result of partiality,
     prejudice, bias or ill will.

            Where the discretion exercised by the trial court is
     challenged on appeal, the party bringing the challenge bears a
     heavy burden. . . . [I]t is not sufficient to persuade the appellate
     court that it might have reached a different conclusion if, in the
     first place, charged with the duty imposed on the court below; it
     is necessary to go further and show an abuse of the
     discretionary power. . . . We emphasize that an abuse of
     discretion may not be found merely because the appellate court
     might have reached a different conclusion, but requires a
     showing of manifest unreasonableness, or partiality, prejudice,
     bias, or ill-will, or such lack of support as to be clearly
     erroneous.

          To constitute reversible error, an evidentiary ruling must
     not only be erroneous, but also harmful or prejudicial to the
     complaining party.

Commonwealth v. Williams, 91 A.3d 240, 248-49 (Pa. Super. 2014) (en

banc) (quotation marks, indentations, and citations omitted).

     Here, Appellant fails to point to any evidence of record demonstrating

that the machine recorded an “invalid sample.” (Appellant’s Brief, at 18-21).

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Rather, as the trial court found, the record reflects that, “[t]he Datamaster

DMT that was used was properly certified as accurate in accordance with

applicable   Department    of   Health   and   Department   of   Transportation

regulations and was tested and certified as falling within the acceptable

range for calibration.    The sample solution used was also analyzed and

certified accurate.” (Trial Ct. Op., at 3; see also id. at 8; N.T. Suppression

Hearing, 8/06/13, at 69-76, 112).        The record further demonstrates that

Appellant, who was trying to fool the machine by holding his breath and not

following the instructions given by Trooper Wade, caused the problems with

the initial tests. (See N.T. Suppression Hearing, 8/06/13, at 25-26, 80-81).

When Trooper Wiley told Appellant to stop playing around or Appellant would

face more severe penalties, Appellant complied with the instructions and

Trooper Wade was able to obtain two complete breath samples. (See id.).

Thus, Appellant’s claim that the trial court should have granted his motion in

limine because of invalid samples on the breath tests lacks merit.

      Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014




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