J-A29027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    GERARDO MEJIA,

                             Appellant               No. 3289 EDA 2016


          Appeal from the Judgment of Sentence September 22, 2016
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0002450-2015


BEFORE: LAZARUS, J., PLATT, J.,* and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 27, 2018

        Appellant, Gerardo Mejia, appeals, pro se, from the judgment of

sentence entered on September 22, 2016, following his non-jury conviction of

driving under the influence—drugs (DUI),1 possession of a small amount of

marijuana,2 failure to keep right,3 and careless driving.4 On appeal, Appellant




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(d)(2).

2   35 P.S. § 780-113(a)(16).

3   75 Pa.C.S.A. § 3301(a).

4   75 Pa.C.S.A. § 3714(a).
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challenges the trial court’s denial of his motion to suppress and the sufficiency

of the evidence. For the reasons discuss below, we affirm.

       We take the underlying facts and procedural history in this matter from

the trial court’s January 6, 2017 memorandum, the notes of testimony of the

suppression hearing, and our independent review of the certified record.

              The suppression hearing establish[ed] the following facts.
       Detective Christopher Schwartz of the Plymouth Township Police
       Department is an experienced police officer, trained additionally
       in drug investigations and driving under the influence offenses. On
       April 11, 2014, the detective was working as a plainclothes officer,
       operating an unmarked vehicle equipped with lights and siren. He
       had a police vest on that prominently displayed the word “Police”
       on the front and back.[5]

              At about 9:55 p.m., Detective Schwartz observed
       [Appellant’s] vehicle, a white Honda Accord, on Conshohocken
       Road swerving into oncoming traffic, crossing the double yellow
       lines on three occasions. In addition, the detective observed the
       vehicle [braking] for no reason that was apparent to him.
       According to the detective[,] there were no obstructions in the
       roadway, or anything that would have been impeding the flow of
       traffic, which would have required [Appellant] to swerve or apply
       his [brakes].

              Based upon these observations, Detective Schwartz,
       initiated a traffic stop, activating his lights and siren, once they
       were in a safe and well-lit area. Detective Schwartz approached
       [Appellant’s] vehicle, in which [Appellant] was the sole occupant.
       According to the detective’s testimony, [Appellant] appeared
       extremely nervous. He was talking in a very low voice and was
       breathing rapidly. [Appellant] only rolled the window down one-
       half of the way down. Detective Schwartz advised [Appellant] that
       he was pulled over because he crossed the double yellow lines.
       [Appellant] responded that he might have been a little over the
       double yellow lines, but not by much.
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5This information appears to contradict the trial court’s earlier statement that
Detective Schwartz was in plainclothes.

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              [Appellant] was asked for his license and proof of valid
        insurance and registration. The detective asked [Appellant] a few
        routine questions, and it was about this time that he detected the
        odor of fresh marijuana coming from the vehicle. Detective
        Schwartz went back to his vehicle to run a check of [Appellant’s]
        cards, while waiting for backup to arrive. When Officer DeSantis[6]
        arrived as backup, Detective Schwartz returned to [Appellant’s]
        vehicle and asked him to step out. [Appellant’s] eyes were red
        and glassy, and the detective smelled the distinct odor of burnt
        marijuana emanating from [Appellant’s] person. [Appellant]
        admitted to smoking marijuana, but he said it was earlier in the
        day.

              These observations led the detective to ask [Appellant] for
        consent to search his vehicle. He explained to [Appellant] what
        consent was and that it had to be voluntary. The detective further
        explained that he had the right to refuse, and that in such a case
        he would obtain a warrant to search the car. After [Appellant]
        asked Detective Schwartz several questions, which were
        answered, [Appellant] consented to the search. [Appellant] was
        not in handcuffs at that time. A search of the vehicle led to the
        finding of the marijuana under the driver’s seat, and [Appellant]
        was then taken into custody.

                                           *     *   *

              [Appellant] testified at the suppression hearing maintaining
        that he did not drive improperly, and other issues which [the trial
        c]ourt found to lack merit.

(Trial Court Opinion, 1/06/17, at 3-5) (record citations omitted).

        The trial court held a suppression hearing on July 26, 2016.

Immediately following the hearing, the trial court suppressed the results of a

blood draw, but denied the rest of Appellant’s motion.         Directly after the




____________________________________________


6   Officer DeSantis’s first name is not mentioned in the certified record.

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hearing, Appellant proceeded to trial and the trial court found him guilty of

the aforementioned charges.

      On September      22, 2016, following      review   of the   presentence

investigation report, the trial court sentenced Appellant to an aggregate term

of incarceration of not less than time-served nor more than six months.      On

October 19, 2016, Appellant filed the instant, timely appeal. On October 21,

2016, the trial court ordered Appellant to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). On November 9, 2016,

Appellant a timely Rule 1925(b) statement. See id. On January 6, 2017, the

trial court filed an opinion. See Pa.R.A.P. 1925(a).

      On May 22, 2017, Appellant’s counsel moved to withdraw. On June 12,

2017, this Court granted counsel’s motion to withdraw and remanded the

matter to the trial court for a determination of Appellant’s eligibility for

appointed counsel. On June 23, 2017, the trial court sent a letter to this Court

informing us that Appellant was not eligible for appointed counsel and had

elected to proceed pro se on appeal.

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

            1. Did the police officer have probable cause:

                a. to stop [Appellant’s] vehicle for what was, at most,
      a momentary and minor traffic violation?

                  b. to search [Appellant’s] vehicle?

             2. Since the circumstances were not “so telling” as to form
      a “clear connection” between marijuana and impairment and no


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       expert testimony was introduced to bridge that gap, can
       [Appellant’s] conviction for driving under the influence stand?

(Appellant’s Brief, at 6).

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

(See id. at 13-19). 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 from

these 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.

       Appellant first argues that the police lacked probable cause7 to stop his

vehicle. (See Appellant’s Brief, at 13-17). We disagree.

       In its opinion, the trial court succinctly analyzed this issue as follows.

            [“]The issue of what quantum of cause a police officer must
       possess in order to conduct a vehicle stop based on a possible
____________________________________________


7 We note that in his Rule 1925(b) statement, Appellant argued that the police
lacked “reasonable suspicion” to stop his car.          ([Appellant’s] Concise
Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b),
11/09/16, at unnumbered page 1 ¶ 2). However, in its opinion, the trial court
specifically noted that it had found the police had probable cause to stop the
vehicle and discussed its finding under that standard. (See Trial Ct. Op., at
5-9). Therefore, we do not find that Appellant waived this issue.

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     violation of the Vehicle Code is a question of law, over which the
     scope of review is plenary and the standard of review is de novo.”
     Commonwealth v. Holmes, 14 A.3d 89, 94 (Pa. 2011) [(citation
     omitted)]. The Vehicle Code provides the following statutory
     authorization for a police officer to stop a motor vehicle:

           Whenever a police officer . . . 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.[A.] § 6308(b). Accordingly, Section 6308(b) requires
     only reasonable suspicion in support of a stop for the purpose of
     gathering information necessary to enforce the Vehicle Code
     violation. However, in Commonwealth v. Feczko, 10 A.3d
     1285, 1291 (Pa. Super. 2010) (en banc)[, appeal denied, 25 A.3d
     327 (Pa. 2011)][, this Court] held that a police officer must have
     probable cause to support a vehicle stop where the officer’s
     investigation subsequent to the stop serves no “investigatory
     purpose relevant to the suspected [Vehicle Code] violation.”
     [Feczko, supra at 1291]. In Feczko, the police officer observed
     the defendant’s vehicle cross over the double yellow median line
     and the fog line. [See id.] at 1286. During the ensuing vehicle
     stop, the officer noticed the scent of alcohol on the defendant’s
     breath. [See id.] Importantly, the officer did not testify that the
     stop was based on suspicion of DUI. [See id.] The defendant
     was convicted of DUI and a Vehicle Code violation, and argued on
     appeal that the vehicle stop was illegal. [See id.] This Court
     noted the distinction between the investigative potential of a
     vehicle stop based on a reasonable suspicion of DUI as compared
     to other suspected violations of the vehicle code. [See id.] at
     1289 (citing Commonwealth v. Sands, 887 A.2d 261, 270 (Pa.
     Super. 2005)). Whereas a vehicle stop for suspected DUI may
     lead to further incriminating evidence such as an odor of alcohol
     or slurred speech, a stop for suspected speeding is unlikely to lead
     to further evidence relevant to that offense. [See id.] Therefore:

           a vehicle stop based solely on offenses not
           “investigable” cannot be justified by a mere

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              reasonable suspicion, because the purposes of a
              Terry[8] stop do not exist-maintaining the status quo
              while investigating is inapplicable where there is
              nothing further to investigate. An officer must have
              probable cause to make a constitutional vehicle stop
              for such offenses.

        Feczko, [supra] at 1290 (quoting Commonwealth v. Chase,
        960 A.2d 108, 116 (Pa. 2008) [(emphasis omitted)]).

              In this case, [the trial court] applied the probable cause
        standard to the legality of the vehicle stop. Officer Schwartz
        stopped [Appellant’s] vehicle because of his swerving over the
        double yellow line several times into the opposing traffic lane and
        because of [Appellant’s] unexplained random [braking]. These
        two violations of the Vehicle Code did not require additional
        investigation. It was only after Schwartz stopped [Appellant’s]
        vehicle did Detective Schwartz suspect a DUI violation. Therefore,
        [the trial court] reviewed the facts using the probable cause
        requirement, and not a reasonable suspicion standard as
        [Appellant] has suggested in this appeal.

              “The police have probable cause where the facts and
        circumstances within the officer’s knowledge are sufficient to
        warrant a person of reasonable caution in the belief that an
        offense has been or is being committed. We evaluate probable
        cause by considering all relevant facts under a totality of
        circumstances analysis.” Commonwealth v. Hernandez, 935
        A.2d 1275, 1284 (Pa. 2007) (citation[s] and quotation marks
        omitted). “[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.
        Salter, 121 A.3d 987, 994 (Pa. Super. 2015) (citation omitted).

              Applying the law to the facts of this case, [the trial court]
        found that the vehicle stop was entirely lawful and proper.
        Detective Schwartz had probable cause to believe that the Vehicle
        Code was being violated in his presence. He observed the
        swerving of the vehicle over the double yellow lines into the
        opposite traffic lane several times in the short period of time he
        followed [Appellant’s] vehicle. The swerving was of the nature
____________________________________________


8   Terry v. Ohio, 392 U.S. 1 (1968).

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J-A29027-17


      that it would have posed a hazard to the other vehicle on the
      roadway. He also observed the random [braking] although,
      according to the detective’s testimony, there were no roadway
      conditions that would require [braking] in this manner. Given the
      totality of these circumstances, [the trial court] determined that
      Detective Schwartz had probable cause to stop [Appellant’s]
      vehicle based upon the Vehicle Code violations he witnessed.

(Trial Ct. Op., at 6-9).

      We have reviewed the testimony at the suppression hearing and the

trial court’s opinion, and find both that the evidence supports court’s factual

findings and there is no mistake in its legal conclusions. See Holton, supra

at 1249.     Therefore, we find that the trial court did not err in denying

Appellant’s motion to suppress because the police had probable cause to stop

Appellant’s vehicle. See id.

      Appellant next argues that the trial court erred in finding that the police

had probable cause to search his vehicle. (See Appellant’s Brief, at 17-19).

However, he waived this claim. Appellant did not raise this claim in his Rule

1925(b) statement, which only challenged the stop of the vehicle and, more

generally the denial of the motion to suppress.      (See Statement of Errors

Complained of on Appeal, at unnumbered pages 1-2). As amended in 2007,

Pennsylvania Rule of Appellate Procedure 1925 provides that issues that are

not included in the Rule 1925(b) statement or raised in accordance with Rule

1925(b)(4)    are   waived.     See   Pa.R.A.P.   1925(b)(4)(vii);    see   also

Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by rule

on other grounds as stated in Commonwealth v. Burton, 973 A.2d 428, 431


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(Pa. Super. 2009).    Therefore, Appellant waived any challenge to lack of

probable cause to search his vehicle. See id.

      In his final issue, Appellant argues that the evidence was insufficient to

sustain his conviction for DUI because there was no evidence that “the

intoxicating substance ha[d] substantially impaired the normal mental and

physical faculties required to safely operate the vehicle.” (Appellant’s Brief,

at 20; see id. at 20-29). However, again, Appellant waived the claim.

      Our standard of review for sufficiency of the evidence claims is well

settled:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed in
      a light most favorable to the Commonwealth as verdict
      winner, support the conviction beyond a reasonable doubt.
      Where there is sufficient evidence to enable the trier of fact to find
      every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute our
      judgment for that of the fact-finder. The Commonwealth’s burden
      may be met by wholly circumstantial evidence and any doubt
      about the defendant’s guilt is to be resolved by the fact finder
      unless the evidence is so weak and inconclusive that, as a matter
      of law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted) (emphasis added).




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      However, we are unable to address the merits of Appellant’s claim,

because his Rule 1925(b) statement did not sufficiently identify the error that

he intended to challenge on appeal.

      As this Court has consistently held:

             If Appellant wants to preserve a claim that the evidence was
      insufficient, then the [Rule] 1925(b) statement needs to specify
      the element or elements upon which the evidence was insufficient.
      This Court can then analyze the element or elements on appeal.
      [Where a Rule] 1925(b) statement [ ] does not specify the
      allegedly unproven elements[,] . . . the sufficiency issue is waived
      [on appeal].

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)

(citation and emphasis omitted).

      Here, in his Rule 1925(b) statement, Appellant stated, “the trial court

erred in finding him guilty [of the charges at issue] as there was insufficient

evidence . . . to support such convictions.” (Statement of Errors Complained

of on Appeal, at unnumbered page 1). Appellant, for the first time in this

case, in the ‘Statement of the Questions Involved’ section of his brief,

identified the specific elements upon which he believed the evidence was

insufficient. In its Rule 1925(a) opinion, the trial court specifically found that,

because of Appellant’s vague 1925(b) statement, his sufficiency of the

evidence claims were waived. (See Trial Ct. Op., at 10). While it did generally

address the evidence underlying Appellant’s convictions, it was unable to

discern the specific sufficiency argument raised in the instant appeal from

Appellant’s general Rule 1925(b) challenge to the sufficiency of the evidence,


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and did not address it. (See id. at 11-13). Moreover, in its brief on appeal,

the Commonwealth objects to the defects in Appellant’s Rule 1925(b)

statement, arguing that Appellant waived his sufficiency argument.      (See

Commonwealth’s Brief, at 15-19).

      We agree that Appellant’s Rule 1925(b) statement, failed to specify

which of Appellant’s multiple convictions was at issue, did not identify which

elements of the convictions he was challenging, and made it impossible to

discern the very specific issue raised in his brief.   We must conclude that

Appellant’s sufficiency of the evidence claim is waived on appeal.       See

Williams, supra at 1257.

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

of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




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