J-A15023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID HARVEY

                            Appellant                 No. 1930 EDA 2014


             Appeal from the Judgment of Sentence April 21, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0008033-2013


BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                FILED JUNE 18, 2015

        Appellant, David Harvey, appeals from the April 21, 2014 judgment of

sentence of 72 hours to six months of imprisonment, plus fines, imposed

after the trial court found him guilty of driving under the influence (DUI)-

schedule I controlled substance and DUI-metabolite.1 After careful review,

we affirm.

        The trial court provided the following summary of the factual

background of this case.

                   On September 23, 2013, at approximately
              8:[03] p.m., Officer Eric Barrows responded to a hit
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(d)(1)(i) and 3802(d)(1)(iii), respectively.
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          and run accident on 207 Blue Ridge Drive in Bristol
          Township, Bucks County.         The radio broadcast
          informed Officer Barrows that an individual involved
          in the accident had a knife. Two vehicles were
          involved in the accident. [Appellant] was driving his
          wife’s vehicle at the time of the accident and had no
          passengers. Mr. Shellenberger was driving the other
          vehicle and had a female passenger.               Mr.
          Shellenberger caused the accident and was in
          possession of the knife.

                 Officer Barrows smelled the marijuana when he
          arrived at the scene. When Officer Barrows spoke to
          [Appellant], he could smell marijuana emitting
          directly from him as they talked. No one else was
          standing near [Appellant] and Officer Barrows at that
          time. Officer Barrows also observed that [Appellant]
          had glassy eyes. Officer Barrows asked [Appellant]
          twice if he had marijuana on him and [Appellant]
          responded that he did not. [Appellant] was advised
          that he had to remain at the scene because the
          accident was a state police matter. Officer Barrows
          asked [Appellant] about marijuana a third time,
          warning him that the state police were on their way
          and that they would discover the marijuana if it
          existed. At that time, [Appellant] stated that he had
          smoked marijuana forty minutes ago and had a
          marijuana cigarette in the car.      [Appellant] was
          patted down in the presence of another officer at
          that time.

                At approximately 8:15 p.m., Pennsylvania
          State Trooper Rachael Jones arrived at the scene,
          and Officer Barrows relayed his interaction with
          [Appellant] to Trooper Jones.       Another officer
          informed Trooper Jones that [Appellant] stated that
          there was a marijuana cigarette under his driver’s
          seat floor mat. Upon speaking with [Appellant],
          Trooper Jones noticed that he had bloodshot eyes
          and that he was speaking slowly. [Appellant] was
          placed under arrest for [DUI]. The officers searched




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              [Appellant’s] vehicle at that time [and recovered a
              marijuana cigarette and hashish.2]

Trial Court Opinion, 9/3/2014, at 1-2.

        On December 30, 2013, the Commonwealth filed an information

charging Appellant with the aforementioned offenses as well as DUI-

impaired ability, possession of a small amount of marijuana for personal use,

and use or possession with intent to use drug paraphernalia.3

        On January 23, 2014, Appellant filed an omnibus pretrial motion

seeking to suppress statements made to law enforcement, any evidence

obtained from his person and vehicle, and the results of the chemical test

performed on Appellant following his arrest.           Appellant’s Omnibus Pretrial

Motion, 1/23/14, at 1-3.4 Appellant also sought additional discovery in said

motion.     Id. at 3.   Appellant filed a supplemental motion on February 28,

2014, again seeking suppression of the evidence obtained from his person

and vehicle and additional discovery.            Appellant’s Supplemental Omnibus

Pretrial Motion, 2/28/14, at 1-3. Appellant also filed a motion in limine to

exclude the testimony of law enforcement officials based on Trooper Jones’

failure to preserve a motor vehicle recording. Appellant’s Motion In Limine,
____________________________________________


2
    N.T., 4/21/14, at 8.
3
  75 Pa.C.S.A § 3802(d)(2), 35 P.S. §§ 780-113(a)(31) and 780-113(a)(32),
respectively.
4
  Appellant’s pretrial motions do not contain pagination.    For ease of
reference, we have assigned each page a corresponding page number.



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3/25/14, at 1-3.      The trial court held a hearing on Appellant’s motions on

April 16, 2014; at which time, the trial court denied Appellant’s motion in

limine. N.T., 4/16/14, at 36. At the conclusion of testimony and argument,

the trial court deferred its ruling pending counsel’s proposed findings of fact.

The trial court reconvened on April 21, 2014 and granted Appellant’s motion

to suppress with respect to all statements made by Appellant and the

evidence obtained from Appellant’s car. N.T., 4/21/14, at 9. The trial court

concluded, however, that the Commonwealth had probable cause to arrest

Appellant for DUI.       Id.     The Commonwealth nolle prossed DUI-impaired

ability, the possession of marijuana, and the paraphernalia charges, and

Appellant proceeded to a stipulated-bench trial on DUI-schedule I controlled

substance and DUI-metabolite.                  Id. at 10-13.   The Commonwealth

introduced the laboratory results from Appellant’s blood test following his

arrest, which “revealed 5 nanograms of Delta-9 THC, which would be the

active compound, and 8 nanograms of a metabolite Delta-9 carboxy THC.”

Id. at 14. The trial court found Appellant guilty of DUI-schedule I controlled

substance and DUI-metabolite and proceeded immediately to sentencing.

On April 30, 2014, Appellant filed a timely post-trial motion, which the trial

court denied on June 18, 2014. On July 11, 2014, Appellant filed a timely

notice of appeal.5

____________________________________________


5
    Appellant and the trial court have complied with Pennsylvania Rule of
(Footnote Continued Next Page)


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      On appeal, Appellant raises the following issue for our review.

             Whether the denial of Appellant’s [m]otion to
             [s]uppress [e]vidence based upon a failure to
             establish probable cause for his arrest was proper[?]

Appellant’s Brief at 4.

      When reviewing a challenge to a trial court’s denial of a suppression

motion, we adhere to the following well-established standard of review.

             We may consider only the Commonwealth’s evidence
             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 record supports
             the factual findings of the trial court, we are bound
             by those facts and may reverse only if the legal
             conclusions drawn therefrom are in error.          An
             appellate court, of course, is not bound by the
             suppression court’s conclusions of law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

       Appellant’s sole argument on appeal challenges the trial court’s

determination that probable cause existed for his arrest.6 Appellant’s Brief

                       _______________________
(Footnote Continued)

Appellate Procedure 1925.
6
  We note Appellant argues that probable cause for his arrest for DUI-
metabolite is lacking when “blood shot eyes” and “slow speech” are removed
from the analysis. Appellant’s Brief at 14. He argues such factors should be
excluded because “[t]hese observations are directly contrary to [the
testimony] of Officer Barrows…” Id. at 17. However, Appellant never
identified the trial court’s credibility determinations or findings of fact in his
Rule 1925(b) statement as claims of error; as such, any such challenges are
waived on appeal. See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa.
2011) (holding Rule 1925(b) is a bright-line rule, and any issue not included
in the 1925(b) statement are waived on appeal); accord Pa.R.A.P.
1925(b)(4)(vii).



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at 14.   “Both the United States and Pennsylvania Constitutions protect

citizens against unreasonable searches and seizures.      U.S. Const. amend.

IV; Pa. Const. art. I, § 8.   To be constitutionally valid, an arrest must be

based on probable cause.” Commonwealth v. Smith, 979 A.2d 913, 916

(Pa. Super. 2009) (citation omitted), appeal denied, 993 A.2d 901 (Pa.

2010).

                 Probable cause exists where the facts and
           circumstances within the knowledge of the officer are
           based upon reasonably trustworthy information and
           are sufficient to warrant a man of reasonable caution
           in the belief that the suspect has committed or is
           committing a crime.         In determining whether
           probable cause exists, we apply a totality of the
           circumstances test.

Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa. Super. 2013)

(internal quotation marks and citations omitted).     “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.” Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa.

2009) (internal quotation marks and citations omitted, emphasis in original).

     Appellant argues, “probable cause to arrest was not established for

driving under the impaired influence of marijuana, which was the basis for

Trooper Jones’ arrest.” Appellant’s Brief at 14. He further argues, “probable

cause did not exist for either impairment or metabolite.”      Id.   Appellant

supports his argument with the following reasoning.




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J-A15023-15


            Trooper Jones stated [] Appellant did not cause the
            accident and no evidence existed that he drove
            unsafely. Field Sobriety tests were not requested.
            The [trial] court did not hear any evidence of rapid
            eye   movement, trembling eyelids, sweating,
            nervousness, fleeing the scene, erratic driving by
            Appellant, or any other indicia of potential
            impairment. Importantly, the trial court also did not
            make a finding of fact that [] Appellant had slurred
            speech; only that he was speaking slowly.

Appellant’s Brief at 15 (citations omitted). For the reasons that follow, we

disagree.

     In this case, the trial court made the following findings of fact at the

conclusion of the suppression hearing.

                  [F]irst, Officer Barrows is a Bristol Township
            police officer and has been a police officer for seven
            years.

                  Next, on September 23[, 2013,] Officer
            Barrows responded to what was broadcast [sic] as a
            subject with a knife at approximately 8:03 [p.m.] in
            the area of 207 Blue Ridge Drive, Bristol Township,
            Bucks County.

                  Next, the officer later learned that there was
            also a hit and run crash.

                  Next, Officer Barrows was in full uniform.

                  Next, while on scene Officer Barrows detected
            an odor of marijuana and at first was not sure as to
            the source of the marijuana.

                  Next, Officer Barrows has training           and
            experience in identifying the odor of marijuana.

                  Next [], after securing the individuals, Officer
            Barrows spoke to [Appellant] and noted an odor of
            marijuana emitting from him. Officer Barrows also

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J-A15023-15


              noted that [Appellant] had glassy eyes. … Officer
              Barrows asked [Appellant] if he had marijuana on
              him, and he replied no.

                   Next, the officer asked [Appellant] a second
              time about having marijuana, and he again denied
              having marijuana.

                    Next, [Appellant] was told he needed to
              remain at the scene because it was a state police
              case.

                    Next, Officer Barrows told [Appellant] that the
              police were on their way … and that they would find
              the marijuana and it was better for him to admit it.
              [Appellant] was not read his rights pursuant to
              Miranda.[7]

                    During this third conversation[,] [Appellant]
              was patted down.      During this third questioning
              regarding the marijuana[,] another uniformed officer
              was also present. [Appellant] responded that he had
              smoked marijuana 40 minutes ago and had a
              cigarette in the car.

                    Next, Officer Barrows … gave Trooper Jones
              information about everything that he had observed
              and heard from [Appellant].

                    Trooper Jones is a Pennsylvania State Trooper
              and has been so employed for approximately two
              and a half to three years.

                     Next, Trooper Jones has had contact with
              individuals … who have used marijuana and has
              observed them to have bloodshot eyes, slow and
              slurred speech, unsteady gait and shaking.

                    Next, Trooper Jones has also had experience
              with identifying the smell of marijuana.
____________________________________________


7
    Miranda v. Arizona, 384 U.S. 436 (1966).



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J-A15023-15



                Next, on September 23[, 2014,] Trooper Jones
          received a call about a hit and run crash at 8:03
          p.m. and she responded at 8:15. Trooper Jones’ car
          was the fifth car to arrive at the scene.

                 Two other individuals were under investigation
          at the scene for charges related to possession of
          heroine [sic], hit and run, and for brandishing a
          knife.

               Next, when Trooper Jones arrived at the scene
          she observed two individuals in custody and
          [Appellant] on the scene out of custody.

               Next, Officer Barrows told Trooper Jones what
          he had observed, smelled and heard.

                Next, when [Trooper Jones] came into contact
          with [Appellant], she observed bloodshot eyes and
          that he was speaking slowly.

                Next, … Trooper Jones also smelled the odor of
          marijuana coming from [Appellant].

                Next, she spoke to [Appellant] about the hit
          and run crash.

                Another officer told Trooper Jones that
          [Appellant] stated that a marijuana cigarette was
          under the driver’s side floor board. [Appellant] did
          not consent to the search of the vehicle he was
          driving. [Appellant’s] wife was the owner of the
          vehicle.

                                    …

                … [Appellant] was placed under arrest for
          driving under the influence.

                During the search of the vehicle[,] the officers
          found a substance in addition to the cigarette[,] and
          [Appellant] identified the substance saying it was
          hashish.

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J-A15023-15



N.T., 4/21/2014, at 3-9.         Based on these findings of fact, the trial court

concluded that probable cause existed to arrest Appellant for DUI. Id. at 9.

The trial court also granted Appellant relief in the form of suppressing his

statements and the fruits of the inventory search of his vehicle.8 Id.

       The trial court specifically found that when Trooper Jones, the

arresting officer, encountered Appellant, Appellant was speaking slowly, had

bloodshot eyes, and emitted an odor of marijuana.              N.T., 4/21/14, at 7.

Trooper Jones was experienced in identifying the aroma of marijuana and

had observed similar symptoms as the ones exhibited by Appellant in others

who have used marijuana.           Id. at 6-7.     Further, there is no dispute that

Appellant was operating a vehicle prior to the police encounter that resulted

in his arrest. See id. at 14. Therefore, we conclude the record supports the

trial court’s factual findings. See Gary, supra; see also N.T., 4/16/14, at

59-62. The trial court articulated its reasoning for its conclusion of law, in

light of the facts of this case, in its Rule 1925(a) opinion as follows.

                    [M]arijuana is a Schedule I controlled
              substance; therefore [Appellant] was prohibited from
              operating a vehicle with any amount of marijuana in
              his system.     In light of this standard, Officer
              Barrows’ and Trooper Jones’ observations were more
              than enough to establish that [Appellant] was
              operating a vehicle with marijuana in his system.
____________________________________________


8
  The Commonwealth did not file an interlocutory appeal from the trial
court’s partial grant of Appellant’s suppression motion with this Court
pursuant to Pennsylvania Rule of Appellate Procedure 311(d).



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J-A15023-15


              Accordingly, based on the totality of the
              circumstances, Officer Barrows and Trooper Jones
              had enough information for a reasonably prudent
              person to believe that [Appellant] was driving under
              the influence of marijuana and had a metabolite in
              his system.

Trial Court Opinion, 9/3/2014, at 5.

       Under the totality of the circumstances, we conclude the facts and

circumstances within the knowledge of Trooper Jones, i.e., her first-hand

observations of Appellant and detection of         marijuana odor, without

consideration of Appellant’s statements or the fruits of the search of the

vehicle, were sufficient to establish probable cause that Appellant was

driving under the influence of marijuana.9 See Delvalle, supra. Appellant

attempts to discount Trooper Jones’ determination of probable cause by

enumerating several factors that would support probable cause that were

not observed in the instant case; however, a finding of probable cause does

not require certainty but merely a probability of criminal activity.      See

____________________________________________


9
   Appellant suggests that the trial court erred in denying his motion to
suppress because it found there was probable cause to arrest for DUI-
metabolite but did not specifically find there was probable cause to arrest for
DUI-impaired ability. See Appellant’s Brief at 14 (suggesting “it is improper
to allow an arrest by law enforcement for suspicion of impairment when the
trial judge only found probable cause to arrest based on metabolite[]”).
However, the record does not suggest that the sole reason for Appellant’s
arrest was DUI-impaired ability. As noted, Appellant was arrested and
charged with, inter alia, both DUI-impaired ability and DUI-metabolite.
Trooper Jones testified Appellant was arrested for smoking marijuana and
operating his vehicle. N.T., 4/16/14, at 66. Therefore, we conclude this
argument is without merit.



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J-A15023-15


Thompson, supra.      The observations by Trooper Jones were sufficient to

demonstrate a probability that Appellant was operating his vehicle under the

influence of marijuana. See id. Therefore, his issue is without merit.

     Based on the foregoing, we conclude Appellant’s sole issue on appeal

does not entitle him to relief.   Accordingly, we affirm the April 21, 2014

judgment of sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2015




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