J-S63006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID S. HEATH                             :
                                               :
                       Appellant               :   No. 1461 WDA 2017

           Appeal from the Judgment of Sentence September 13, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002278-2016


BEFORE:      OTT, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 06, 2019

        David S. Heath appeals from the judgment of sentence imposed on

September 13, 2017, in the Court of Common Pleas of Allegheny County

following his conviction1 on charges of Driving Under the Influence (DUI)

General Impairment, Possession of a Small Amount of Marijuana, and

Possession of Drug Paraphernalia.2 Heath received an aggregate sentence of

three to six days’ incarceration with a concurrent period of six months’

probation.    In this timely appeal, Heath claims: 1) the trial court erred in

failing to grant his motion to suppress evidence, and 2) there was insufficient

evidence to prove he was under the influence at the time he was driving. After

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   Former Justice specially assigned to the Superior Court.

1   Heath received a bench trial.

2   75 Pa.C.S. § 3802(a)(1) and 35 P.S. §§ 780-113(a)(31), (32), respectively.
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a thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.

       We quote the suppression court’s findings of fact for the factual history.

       Officer [Jason] Di[i]anni has been employed as a police officer for
       fifteen (15) years. Officer Di[i]anni was on duty patrolling as a
       uniformed officer in a marked car on the night of February 2,
       2016. Officer Di[i]anni was sitting at a traffic light when he
       observed a F-150 come off the ramp from Interstate 376 onto
       Campbells Run Road and “undercompensate” the turn such that
       both of the right tires of the vehicle left the roadway for about fifty
       (50) feet. It is undisputed in this matter that [Heath] was the
       driver of said F-150. Officer Di[i]anni then observed [Heath]
       make a right-hand turn onto McMichael Road. As [Heath] turned
       onto McMichael Road, the Officer observed [Heath’s] vehicle
       bump[] the concrete median with his left tire. After bumping the
       concrete median, the Officer observed [Heath] “cut” the turn “a
       little wide and enter the oncoming left turn lane” for approximately
       75 to 80 feet. The Officer continued to follow [Heath’s] vehicle as
       he made a left-hand turn onto Tidball Road followed by another
       left-hand turn onto Steubenville Pike. Officer Di[i]anni observed
       [Heath] “cut off the edge of the left-turn on Steubenville Pike”
       with his two left wheels for about twenty (20) feet before
       correcting the vehicle. Officer Di[i]anni then effectuated a traffic
       stop of [Heath].

Findings of Fact, 11/30/2016, at 2-3.3

       Additionally, after the traffic stop, the trial court stated, in its Pa.R.A.P.

1925(a) opinion:

       Upon approaching [Heath] in his vehicle, Officer Diianni
       immediately smelled an odor of alcohol and burnt marijuana
       emanating from [Heath’s] vehicle. Additionally, [Heath’s] eyes
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3 The recitation of facts in the trial court opinion is substantially similar to the
findings of fact quoted herein. The trial court opinion begins the recitation of
facts with a statement that Officer Diianni testified both “credibly and
sufficiently.” See Trial Court Opinion, 3/15/2018, at 4.


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       were bloodshot and glassy and his speech was slurred. Officer
       Diianni requested that [Heath] perform field sobriety tests.
       [Heath] was only able to complete three of the four tests Officer
       Diianni requested due to an alleged medical condition. Upon
       completion of the tests Officer Diianni determined [Heath] showed
       signs of impairment and requested [Heath’s] consent to a blood
       draw.[4]

Trial Court Opinion, 3/15/2018, at 2.

       Initially, Heath argues the suppression court erred in denying his motion

to suppress because Officer Diianni’s testimony was inconsistent to the point

of incredibility and therefore he possessed no reasonable suspicion to effect a

traffic stop.

       A challenge to the credibility of the evidence is a claim against the

weight of the evidence. See Commonwealth v. Griffin, 65 A.3d 932, 939

(Pa. Super. 2013). This issue was properly preserved by challenging Officer

Diianni’s credibility before the suppression court.     See N.T. Suppression

Hearing, 8/11/2016, at 48. Regarding a motion to suppress, “[Q]uestions of

credibility and the weight to be accorded to witness testimony are issues

within the sound discretion of the trial court.” In re R.P., 918 A.2d 115, 117

(Pa. Super. 2007). Additionally, “[T]he weight of the evidence is exclusively

for the finder of fact who is free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses. An appellate court cannot

substitute its judgment for that of the finder of fact.” Commonwealth v.

Taylor, 63 A.3d 327, 330 (Pa. Super. 2013). “[I]t is the duty of the finder of
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4Pursuant to Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160,
195 L.Ed.2d 560 (2016), Heath’s failure to give consent to a blood draw was
not considered.

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fact to reconcile inconsistent testimony and resolve any inconsistencies.”

Commonwealth v. Manchas, 633 A.2d 618, 624 (Pa. Super. 1993). Finally,

the Commonwealth’s burden of persuasion in a motion to suppress is by a fair

preponderance of the evidence, not beyond a reasonable doubt, which is

needed for conviction. See Commonwealth ex rel Butler v. Rundle, 239

A.2d 426 (Pa. 1968); Commonwealth v. Smith, 784 A.2d 182 (Pa. Super.

2011).

      Heath claims Officer Diianni’s testimony was incredible because he

testified inconsistently with his written reports.       Specifically, his testimony

provided more incriminating detail than the report, which was written shortly

after the incident. Examples of this include testimony that Heath’s vehicle

struck the concrete median prior to making the right hand turn onto McMichael

Road as well as observing Heath drive in an incorrect lane of traffic on

McMichael Road.      Neither of these occurrences were included in Officer

Diianni’s police report.

      Despite the fact that certain details were omitted from the official police

report, the suppression court heard Officer Diianni’s testimony at the

suppression hearing and found it to be credible.            As noted above, such

determinations are solely for the finder of fact, and our Court may not

substitute our judgment for that of the suppression court. Accordingly, Heath

is not entitled to relief on this aspect of his claim.

      Heath raises a second aspect of his challenge to the weight of the

evidence; he argues Officer Diianni could not have seen Heath travel in an

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incorrect lane on McMichael Road because a fence obstructs the view of that

road from Campbells Run Road, where Officer Diianni was travelling. While

impossibility can be a strong argument against the weight of the evidence, in

this matter Heath has mischaracterized Officer Diianni’s testimony. Officer

Diianni testified “As I was passing the gap in the fence I could completely see

[Heath] on McMichael Road” at which time “all four” of the tires on Heath’s

vehicle were in the incorrect lane. See N.T. Suppression Hearing, 8/11/2016

at 43. Officer Diianni then testified that after he turned onto McMichael Road,

he witnessed Heath still in the incorrect lane of travel for another 15 to 20

feet.   Id. at 45-46.    Therefore, Officer Diianni was in a position to have

witnessed the infractions to which he testified.

        Having demonstrated that the suppression court did not err in its

assessment of Officer Diianni’s credibility, it is clear that he possessed

probable cause to stop Heath for careless driving. The definition of careless

driving is:

        Any person who drives a vehicle in careless disregard for the
        safety of persons or property is guilty of careless driving, a
        summary offense.

75 Pa.C.S. § 3714.

        The trial court found the numerous instances of Heath’s inability to keep

his vehicle in the proper lane of travel, cutting corners, driving on the berm,

driving in the improper lane, and striking a concrete median, provided more

than ample probable cause to stop Heath. We agree.



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       Finally, Heath claims there was insufficient evidence to support his

conviction for driving under the influence of drugs and/or alcohol.         We

disagree. The trial court cogently stated:

       Specifically, Officer Diianni testified that upon approaching
       [Heath’s] vehicle, Officer Diianni immediately smelled an odor of
       alcohol and burnt marijuana coming from [Heath’s] vehicle.
       Additionally, [Heath’s] eyes were bloodshot and glassy and his
       speech was slurred. Upon requesting [Heath’s] license and
       registration, [Heath] was able to promptly provide his license but
       “stumbled” when looking for his registration before he stopped
       looking altogether. Office Diianni asked [Heath] whether he had
       consumed any alcohol to which [Heath] replied affirmatively that
       he had two beers. Additionally, [Heath] admitted to smoking
       marijuana a few hours prior to the stop. Officer Diianni then
       performed a series of field sobriety tests and Officer Diianni
       credibly testified that [Heath] showed signs of impairment during
       the testing.

Trial Court Opinion, 3/15/2018, at 6.5

       Heath was charged with DUI – general impairment, 75 Pa.C.S. §

3801(a)(1). A “police officer’s testimony is sufficient to prove the elements

of DUI - general impairment.” Commonwealth v. Giron, 155 A.3d 635, 638

(Pa. Super. 2017), citing Commonwealth v. Stanley, 629 A.2d 940, 943

(Pa. Super. 1993). In Giron, the police officer testified he saw Giron’s vehicle

sideswipe a legally parked car, smelled strong odor of alcohol coming from the

vehicle, Giron had red, glassy eyes and his speech was slurred. Additionally,

Giron was unsteady on his feet when he exited his car.          This testimony


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5 The trial court noted as well that Heath offered to provide a breath sample
in lieu of a blood draw, but provided an invalid sample that Heath attributed
to a collapsed lung as a child. Id.

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supported a conviction of DUI – general impairment. Here, Heath sideswiped

a concrete median, drove over berms and into improper lanes of traffic. Heath

had bloodshot and glassy eyes, slurred speech, failed multiple field sobriety

tests, and admitted to both drinking and smoking marijuana prior to driving.

In view of Giron, we find the evidence herein sufficient to support the

conviction for DUI – general impairment.

     In light of the foregoing, Heath is not entitled to relief.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2019




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