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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MICHAEL A. CINTRON,

                            Appellant               No. 1380 EDA 2015


             Appeal from the Judgment of Sentence April 24, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006164-2014

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED FEBRUARY 19, 2016

       Appellant Michael A. Cintron appeals the judgment of sentence entered

by the Honorable Gregory M. Mallon on April 24, 2015, in the Court of

Common Pleas of Delaware County. Following our review of the record, we

affirm.

       The trial court1 articulated the relevant facts and procedural history

herein as follows:

              On July 4, 2014, Corporal Steven William Powers, an
       officer with the Glenolden Borough Police Department for almost
       20 years, was on duty in his semi-marked1 police vehicle. N.T.,
       1/8/15, pp. 7-9. Corporal Powers was in full uniform and was
       parked in the lot of the Glenolden Swim Club. Id. at 9. To his
       right was the area on South Avenue on which the violation giving
       rise to the probable cause to stop happened. In order to fullly
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1
 As Judge Mallon served as both the suppression court and trial court below,
we generally refer to the trial court for ease of discussion.



*Former Justice specially assigned to the Superior Court.
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     understand the basis for the stop, it is necessary to describe the
     roadway.
            Heading west on South Avenue after leaving the Borough
     of Folcroft and then entering the Borough of Glenolden, the
     grade of South Avenue changes to a steep downward hill. Id. at
     71-72. [sic] On this steep downward grade, South Avenue bends
     sharply to the left. The estimate of the bend to the left is
     between 70 to 90 degrees. Id. at 25, 90. [sic] At the bend is a
     concrete wall, which has been painted with reflective paint and
     has a fence. Id. at 26-27. The paint on the wall was described as
     a fluorescent, and was painted as such because of prior
     accidents in the area. Id. at 14.
            It was on this roadway at approximately 11 P.M. on the
     evening of the Fourth of July 2014, while sitting in his patrol
     vehicle, that Corporal Powers heard a loud screech, then looked
     up and saw a white vehicle in the above described portion of
     South Avenue. Corporal Powers said he saw said white vehicle
     swerve to the left. Id. at 28-29. Corporal Powers also said that
     it appeared that the car was going straight to the fence line and
     then "all of a sudden jerked to the left."2 Id. at 33. Corporal
     Powers pulled out of the swim club parking lot to follow the
     vehicle on South Avenue. He observed the vehicle as it
     continued down South Avenue and stop at a steady red traffic
     light at Chester Pike. Id. at 29. After the light turned green, the
     Appellant proceeded driving east on South Avenue for about an
     additional 1000 feet before he was pulled over by Corporal
     Powers. Id. at 29-31. At no point while Corporal Powers was
     following the Appellant did the Appellant do anything beyond
     what was already described above that would provide Corporal
     Powers any additional probable cause or reasonable suspicion to
     justify a car stop.
            Corporal Powers approached the vehicle and spoke to the
     driver. The driver, the Appellant herein, provided his driver's
     license and told Corporal Powers that he had been working until
     9:30 P.M. and had stopped for a beer on his way home. Id. at
     36. The Appellant was very familiar with the area and told
     Corporal Powers that he had swerved because there was a
     pothole in the roadway. Id. at 35. Later that evening, Corporal
     Powers returned to area in question and did [ ] locate any
     potholes. Id. at 54. [sic]
            Upon speaking to the Appellant, Corporal Powers observed
     that the Appellant's eyes were bloodshot and glassy. Id. at 35.
     When the Appellant produced his license, Corporal Powers
     smelled an odor of alcoholic beverage coming from the

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       Appellant's person. Id. at 35. Based upon his observations,
       Corporal Powers believed that the Appellant was incapable of
       safe driving and the Appellant was arrested for driving under the
       influence.
              Appellant, through counsel, filed a pre-trial motion to
       suppress.[2] Following a hearing, the court denied Appellant's
       motion on February 9, 2015. A non-jury stipulated trial was
       conducted on March 27, 2015. At trial, the Commonwealth
       submitted the affidavit of probable cause and incident report, the
       notes of testimony from the Appellant's preliminary hearing, the
       notes of testimony from the Appellant's suppression hearing, and
       the results of the drug laboratory report in this case. Counsel
       stipulated as follows:
                  If called to testify at trial, Corp. Powers would opine
           that based on his extensive training and experience, the
           defendant was unable to safely operate a motor vehicle
           on the highways of the Commonwealth on July 4, 2014.
           Specifically, Corp. Powers has [ ] initiated thousands of
           traffic stops and has personally arrested individuals for
           Driving Under the Influence (DUI) more than three
           hundred (300) times. In the instant case, Corp. Powers
           would base his opinion regarding the defendant's inability
           to safely operate a motor vehicle on the following:
            1. The unsafe manner in which the defendant was
            driving, including Corp. Power's observation of the
            defendant's car swerving,
            2. The defendant's admission that he skidded and
            swerved while driving,
            3. The odor of alcoholic beverage emanating from the
            defendant's person,
            4. The defendant's glassy and bloodshot eyes,
            5. The defendant's profuse sweating at the time of the
            stop, and
            6. The defendant's admission that he had consumed at
            least one alcoholic beverage.
              As a result of the traffic stop and Corp. Powers' belief
           that the defendant was incapable of safely operating a
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[2]
   Importantly, Appellant solely maintained therein that Corporal Powers’
stop of his vehicle had been unlawful because he lacked reasonable
suspicion to believe that Appellant had been driving under the influence of
alcohol in violation of 75 Pa.C.S.A. § 3802.



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         motor vehicle on July 4, 2014, the defendant, Michael
         Cintron was arrested for Driving Under the Influence
         pursuant to 75 Pa.C.S.A. 3802(c). The defendant
         hereby stipulates that Corp. Powers had probable
         cause to arrest him for Driving Under the Influence
         in this matter.
            The defendant was properly advised of his rights and
         consented to a withdrawal of two vials of blood at Taylor
         Hospital. On or about July 7, 2014, Daniel J. Lydon, of the
         Glenolden Borough Police submitted One (1) sealed Blood
         Alcohol Kit containing; (1.1) Whole blood specimen
         identified as collected from Michael Cintron, to the Lima
         Regional Laboratory of the Pennsylvania State Police
         Bureau of Forensic Services. The whole blood specimen
         contained in Item 1.1 was analyzed by Forensic Scientist
         Irina B. Aleshkevich. If called to testify, Ms. Aleshkevich
         would be qualified in the field of forensic science as an
         expert and would testify in that capacity to the result of
         her analysis, that Item 1.1 was analyzed using headspace
         gas chromatography and found to contain 0.204 plus or
         minus 0.009 gram% ethyl alcohol in whole blood.
     See Stipulation dated 3/26/2015 [sic] [(emphasis added)].3
            The court found Appellant guilty of driving under the
     influence, 75 Pa.C.S.A. § 3802(c). On April 24, 2015 Appellant
     was sentenced to an aggregate sentence of 90 days to 23
     months and imposed a $1500 fine and $300 cost assessment.
     The Appellant was sentenced to 3 years of consecutive
     probation, and given credit for time served.4
            On May 6, 2015, Appellant filed a notice of appeal
     necessitating this opinion. Following a directive from this court,
     Appellant filed a 1925(a) statement. Appellant sets forth the
     following issue in his Concise Statement of Matters Complained
     of on Appeal:
         (1) The Commonwealth's evidence presented at the
         Suppression Hearing on January 8, 2015 was insufficient
         to establish probable cause for a Vehicle Code violation or
         reasonable suspicion that the defendant was Driving
         Under the Influence to justify the traffic stop.

     ______
     1
       Corporal Powers explained that a “semi-marked” police vehicle
     is “a slick-top police car. It has no external police lights outside.
     All the lights are inside. But it is fully marked Glenolden Police”
     N.T., 1/8/15, p. 9.

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      2
        On cross-examination counsel established that Corporal Powers
      did not observe the Appellant “skidding” but that the Appellant
      had told him that he skidded.
      3
        The Commonwealth and defense also stipulated to the chain of
      custody.
      4
        The Appellant’s sentence was stayed pending this appeal. See
      Order dated 5/14/2015.

Trial Court Opinion, filed October 6, 2015, at 1-4.

      In his appellate brief, Appellant presents three questions for our

consideration:


      1.      Whether the trial court erred when it denied [ ]
      Appellant’s motion to suppress, finding that Corporal Stephen
      Powers’ observations were sufficient to enable him to have
      probable cause that [ ] Appellant was driving his vehicle in
      violation of § 3361 (“Driving vehicle at safe speed”) of the
      vehicle code.

      2.    Whether the trial court erred when it denied [ ] Appellant’s
      motion to suppress because the Commonwealth failed to meet
      its burden through Corporal Powers’ testimony.

      3.    Whether the trial court erred when it denied [ ] Appellant’s
      motion to suppress, finding that Corporal Stephen Powers’
      observations caused him to have a reasonable suspicion that [ ]
      Appellant was driving under the influence.

Brief of Appellant at 4.

       In considering the above claims, we are mindful of our well-settled

standard and scope of review in suppression matters:

      When reviewing the propriety of a suppression order, an
      appellate court is required to determine whether the record
      supports the suppression court's factual findings and whether
      the inferences and legal conclusions drawn by the suppression
      court from those findings are appropriate. Because Appellee
      prevailed in the suppression court, we may consider only the
      evidence of the defense and so much of the evidence for the
      Commonwealth as remains uncontradicted when read in the

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      context of the record as a whole. Where the record supports the
      factual findings of the suppression court, we are bound by those
      facts and may reverse only if the legal conclusions drawn
      therefrom are in error. However, where the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court's conclusions of law are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts. As a
      result, the conclusions of law of the suppression court are
      subject to plenary review.

Commonwealth v. Dean, 940 A.2d 514, 516 (Pa.Super. 2008) (internal

quotations and citations omitted). 75 Pa.C.S.A. § 6308 provides in relevant

part that:


       (b) Authority of police officer.—Whenever a police officer is
      engaged in a systematic program of checking vehicles or drivers
      or has reasonable suspicion that a violation of this title is
      occurring or has occurred, he may stop a vehicle, upon request
      or signal, for the purpose of checking the vehicle's registration,
      proof of financial responsibility, vehicle identification number or
      engine number or the driver's license, or to secure such other
      information as the officer may reasonably believe to be
      necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b).    In this regard and relevant to the within discussion,

this Court recently reiterated that:

      when considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered. If it is not necessary
      to stop the vehicle to establish that a violation of the Vehicle
      Code has occurred, an officer must possess probable cause to
      stop the vehicle. Where a violation is suspected, but a stop is
      necessary to further investigate whether a violation has
      occurred, an officer need only possess reasonable suspicion to
      make the stop. Illustrative of these two standards are stops for
      speeding and DUI. If a vehicle is stopped for speeding, the
      officer must possess probable cause to stop the vehicle. This is
      so because when a vehicle is stopped, nothing more can be

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      determined as to the speed of the vehicle when it was observed
      while traveling upon a highway. On the other hand, if an officer
      possesses sufficient knowledge based upon behavior suggestive
      of DUI, the officer may stop the vehicle upon reasonable
      suspicion of a Vehicle Code violation, since a stop would provide
      the officer the needed opportunity to investigate further if the
      driver was operating under the influence of alcohol or a
      controlled substance. Compare Commonwealth v. Enick, 70
      A.3d 843, 846 (Pa.Super. 2013) (probable cause required to
      stop for failure to drive on right side of roadway),
      Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa.Super.
      2013) (probable cause required to stop for failure to use turn
      signal), Commonwealth v. Busser, 56 A.3d 419, 424
      (Pa.Super. 2012) (probable cause required to stop for failure to
      yield to emergency vehicles), and [Commonwealth v.]Feczko,
      10 A.3d [1285], 1291 [(Pa.Super. 2010)(en banc)] (probable
      cause required to stop for failure to maintain lanes), with
      Commonwealth v. Holmes, 609 Pa. 1, 14 A.3d 89, 96–97
      (2011) (reasonable suspicion sufficient to stop to investigate
      front windshield obstruction), Commonwealth v. Bailey, 947
      A.2d 808, 812–14 (Pa.Super. 2008) (reasonable suspicion
      sufficient to stop to investigate faulty exhaust system or
      muffler); see also Commonwealth v. Landis, 89 A.3d 694,
      703 (Pa.Super. 2014) (noting that where trooper stopped
      motorist for failing to drive within a single lane—and not to
      investigate possible DUI—he needed probable cause to stop).

Commonwealth v. Salter, 121 A.3d 987, 992-93 (Pa.Super. 2015),

reargument denied (Oct. 14, 2015).

      Initially, we note that while in his Omnibus Pretrial Motion Appellant

challenged only the propriety of the trial court’s determination that Corporal

Powers had reasonable suspicion to believe he had been driving under the

influence of alcohol, for the first time on appeal, Appellant develops an

argument that Corporal Powers lacked probable cause to conduct a traffic

stop to investigate a violation of Section 3361 of the Motor Vehicle Code.

Indeed, Appellant does not mention this Section of the Vehicle Code in his

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Omnibus Pretrial Motion or in his Memorandum of Law in support thereof.

Having failed to raise this specific issue before the trial court, Appellant has

waived it for appellate review.    Pa.R.A.P. 302(a) (issues not raised in the

trial court are waived on appeal); Commonwealth v. Muniz, 5 A.3d 345,

352 (Pa.Super. 2010) (this Court will not consider an issue an appellant fails

to raise before the suppression court).

       Nevertheless, as a discussion of whether Corporal Powers had

probable cause initially to stop Appellant for a Vehicle Code violation is

relevant to a consideration of whether he had reasonable suspicion to

believe that Appellant had been driving under the influence of alcohol, we

would necessarily engage in such analysis when deciding the merits of

Appellant’s second and third issues. However, before doing so, we must

consider the effect of the Stipulation into which Appellant and the

Commonwealth entered on March 27, 2015. See, supra. The Pennsylvania

rules applicable to stipulations are well-settled:

      parties may bind themselves, even by a statement made in
      court, on matters relating to individual rights and obligations, so
      long as their stipulations do not affect the court's jurisdiction or
      due order of business. . . . Stipulations to the admissibility of
      evidence are common. They do not affect jurisdiction, nor
      interfere with judicial business or convenience; instead, they aid
      the court by saving it time which would otherwise be spent on
      determining admissibility. The courts employ a contracts-law
      analysis to interpret stipulations, so that the intent of the parties
      is controlling. The language of a stipulation, like that of a
      contract, is construed against the drafter. The court will hold a
      party bound to his stipulation: concessions made in stipulations
      are judicial admissions, and accordingly may not later in the
      proceeding be contradicted by the party who made them.

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Tyler v. King, 496 A.2d 16, 21-22 (Pa.Super. 1985).

         As noted above, a provision contained in the Stipulation reads as

follows:     “[Appellant] hereby stipulates that Corp. Powers had probable

cause to arrest him for Driving Under the Influence in this matter.”      See

Stipulation, dated March 27, 2015, at 2.       As such, an application of the

aforesaid rules on stipulations to the instant matter suggests that Appellant

cannot challenge on appeal whether Corporal Powers satisfied the less

stringent standard of reasonable suspicion that he was driving under the

influence. Notwithstanding, such finding would be at odds with our Supreme

Court’s holding in Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa.

2014) that:      “[a] colloquy insuring a knowing and voluntary decision is

required any time a defendant stipulates to evidence that virtually assures

his conviction because such a stipulation is functionally the same as a guilty

plea.”

         Herein, no such colloquy appears in the record, although Appellant’s

admission that Corporal Powers had probable cause to arrest him on DUI

charges virtually assured his conviction. Indeed, counsel for neither party

nor the trial court acknowledged that provision in the Stipulation could have

affected the outcome of trial and essentially foreclosed any successful

challenge to the suppression court’s ruling.    Also, Appellant’s filing of the

instant appeal evinces he did not intend to waive his right to challenge




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probable cause for his arrest. Notwithstanding, a review of the record

reveals Appellant’s arrest was proper.

      Section 3361 of the Motor Vehicle Code provides:

      § 3361. Driving vehicle at safe speed

      No person shall drive a vehicle at a speed greater than is
      reasonable and prudent under the conditions and having regard
      to the actual and potential hazards then existing, nor at a speed
      greater than will permit the driver to bring his vehicle to a stop
      within the assured clear distance ahead. Consistent with the
      foregoing, every person shall drive at a safe and appropriate
      speed when approaching and crossing an intersection or railroad
      grade crossing, when approaching and going around curve,
      when approaching a hill crest, when traveling upon any narrow
      or winding roadway and when special hazards exist with respect
      to pedestrians or other traffic or by reason of weather or
      highway conditions.


75 Pa.C.S.A. § 3361 (emphasis added).

      As it was not necessary for Corporal Powers to stop Appellant’s vehicle

to establish that he had been driving at an unsafe speed, Corporal Powers

needed to possess probable cause prior to doing so.             Salter, supra.

Corporal Powers testified he heard a loud screech and when he looked up he

observed Appellant’s vehicle swerve to the left and make a sharp left turn in

an effort to avoid colliding with a fenced wall. N.T., 1/8/15, at 20, 30-31.

Appellant’s vehicle was the only one on the road at the time, and the

conditions were clear.   Id. at 19, 25.       In light of the way Appellant had

negotiated the turn, Corporal Powers was concerned he had been driving too

fast, and proceeded to effect a traffic stop. Id. at 25.


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       Responsibly “approaching and going around a curve” are “conditions”

specifically enumerated in the statute that require a driver to proceed at “a

safe and appropriate speed.” When Corporal Powers heard a loud screech

and observed Appellant swerve to avoid a collision, he had probable cause to

stop Appellant’s vehicle, as such driving was a violation of the Vehicle Code.

       Upon further investigation, Corporal Powers, who had arrested over

three hundred individuals for DUI, testified he observed Appellant’s glassy,

bloodshot eyes and profuse sweating and smelled the odor of alcohol on his

person, all classic signs of intoxication. Id. at 26-27. In addition, Appellant

admitted he “skidded and swerved” to avoid a pothole and that he had

consumed at least one alcoholic beverage. Id. Although Corporal Powers

did not administer field sobriety tests due to Appellant’s physical limitations,

he did offer a portable breath test which registered .12%.       Appellant also

submitted to a blood test which revealed his blood alcohol level to be 0.204.3

See Affidavit of Probable Cause, dated 7/6/14.

       The trial court found the testimony of Corporal Powers to be credible,

Trial Court Opinion, filed 10/6/15 at 6, ¶ 17, and this Court may not

substitute its credibility determinations for that of that court. Muniz, supra

at 352.     For the foregoing reasons, we conclude Corporal Powers had

probable cause to conduct a traffic stop because Appellant had been driving
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3
 75 Pa.C.S.A. § 3802(c) categorizes any alcohol concentration above 0.16%
as the “Highest rate of alcohol.”



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at an unsafe speed and, subsequently, for arresting Appellant under

suspicion of DUI.    See Commonwealth v. Angel, 946 A.2d 115, 118

(Pa.Super. 2008) (stating “[p]robable cause exists 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.”).

      Accordingly, we conclude the trial court properly denied Appellant’s

motion to suppress and affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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