J-A31003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

WILLIAM MCSORLEY, JR.,

                        Appellee                    No. 272 MDA 2014


                 Appeal from the Order January 17, 2014
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0003683-2013


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                      FILED NOVEMBER 18, 2014

     The   Commonwealth      appeals   from   the   trial   court’s   grant   of

William McSorley, Jr.’s motion to suppress and writ of habeas corpus.

Finding that the trial court erred, we reverse those aspects of the order

challenged by the Commonwealth.

     The suppression court delineated the salient facts as follows.

            On August 8th, 2013 at approximately 7:15 P.M.
     Officer William Hanna was on patrol from the shoulder of Route
     100 (1/2 mile south of New Berlinville Exit). Officer Hanna was
     conducting a Tracker speed enforcement detail as part of an
     "aggressive driving detail." The posted speed limit was 55 mph.
     He observed a gold colored GMC pickup truck speeding (94 mph)
     in the southbound lane. Officer Hanna activated his emergency
     lights and siren to follow the truck. He made initial contact with
     the truck when it was legally parked in a Redner's Market
     Parking Lot. Officer Hanna proceeded to conduct his traffic stop
     and explained to the operator the reasons therefore. The vehicle
     operator (Defendant) identified himself as William McSorley (16
     year old Chelsea McSorley was in the passenger seat). The
J-A31003-14


     Defendant stated that he was speeding because a red car was
     tailgating him too closely. Officer Hanna smelled an odor of an
     alcoholic beverage on his breath. He also observed flushed skin
     tone and red watery eyes.

           Officer Hanna asked the Defendant if he had had anything
     to drink. The Defendant admitted to consuming one (1) Coors
     Light at his residence in New Ringgold. The Defendant started to
     get loud at the scene, so Officer Hanna called for backup and
     was assisted by Officer Matt Merry. Officer Hanna had the
     Defendant exit the vehicle and perform three (3) Field Sobriety
     Tests, the Walk & Turn, One Leg Stand, and Finger to Nose.
     Officer Hanna testified he performed the SFST's “fairly.” Officer
     Hanna then gave the Defendant a Portable Breathalyzer Test,
     [(PBT)] and the results were positive for alcohol.

           Officer Hanna placed the Defendant in custody for DUI and
     placed him in the police vehicle. Officer Hanna read the implied
     consent form for blood sample testing. The Defendant agreed
     and signed the form. Officer Hanna checked the Defendant's
     driver license with Penn Dot and discovered that it was
     suspended.     Officer Hanna started to conduct an inventory
     search of the GMC pickup truck and found four (4) firearms
     along with ammunition. Officer Hanna also found empty and
     closed Coors Light beer cans on the back seat floor. The
     Defendant was then transported to St. Joseph Hospital for a
     blood draw.

            On August 27, 2013, a Bill of Information was filed
     charging Mr. William McSor[le]y, Jr. (hereinafter Defendant) with
     one count of Driving Under the Influence, 75 Pa.C.S.
     § 3802(a)(1); one count of Driving Under the Influence, 75
     Pa.C.S. § 3802(b); one count of Driving While Operating
     Privilege   is    Suspended     or     Revoked,     75   Pa.C.S.
     § 1543(b)(1.1)(ii); one count of Persons Not to Possess
     Firearms, 18 Pa.C.S. § 6105(a)(1), one count of Endangering
     Welfare of Children, 75 Pa.C.S. § 4304(a)(1); one count of
     Careless Driving, 75 Pa.C.S. § 3714(a); and one count of
     Maximum Speed Limits, 75 Pa.C.S. § 3362(a)(2).

Suppression Court Opinion, 4/16/14, at 2-3.




                                   -2-
J-A31003-14


       Thereafter, McSorley filed an omnibus motion to suppress and writ of

habeas corpus.       McSorley contended that his arrest for DUI was without

probable cause, and the subsequent search of his vehicle was therefore

illegal.1    The suppression court concluded that McSorley’s excessive

speeding, admission to consuming one beer, the odor of alcohol on his

breath, his loud speech, flushed skin, red watery eyes, and positive PBT test

for alcohol was insufficient probable cause to arrest McSorley for DUI.

Accordingly, it ruled the arrest and ensuing search illegal. Since it concluded

that the arrest and search were invalid, it dismissed the charges against

McSorley.

       The   Commonwealth         timely       appealed.   The   court   directed   the

Commonwealth to file and serve a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.            The Commonwealth complied, and the

suppression court authored its opinion. We now review the Commonwealth’s

issues on appeal.

       A. Did the trial court err in suppressing evidence obtained as a
          result of a lawful arrest supported by probable cause to
          believe that McSorley was driving under the influence of
          alcohol or a controlled substance?

       B. Did the trial court err in granting the request for a writ of
          habeas corpus without permitting the Commonwealth to
          appeal from the adverse suppression ruling?
____________________________________________


1
  McSorley also argued that an inventory search of his car was unlawful.
The suppression court ruled in his favor on this ground. The Commonwealth
has not appealed this aspect of the suppression court’s ruling.



                                           -3-
J-A31003-14


Commonwealth’s brief at 4.

          We evaluate the denial of a suppression motion under well-established

principles.     We consider the evidence of the defendant, as the prevailing

party below, and any evidence of the prosecution that is uncontradicted

when examined in the context of the suppression record. Commonwealth

v. Peterson, 17 A.3d 935, 937 (Pa.Super. 2012). This Court is bound by

the factual findings of the suppression court where the record supports those

findings and may only reverse when the legal conclusions drawn from those

facts are in error.        Id.    Importantly, we are not bound by the legal

conclusions of the suppression court.            In re T.B., 11 A.3d 500, 505

(Pa.Super. 2010).

          The Commonwealth contends that the totality of the circumstances

supports a legal finding of probable cause to arrest McSorley for DUI. In this

respect, it highlights that McSorley was observed traveling 94 mph in a 55

mph zone, he admitted to consuming a beer, had watery eyes and flushed

skin, became loud, and his PBT test revealed a BAC in excess of the legal

limit.2

          McSorley responds by reiterating the suppression court’s rationale. He

posits that, although he was speeding, the officer did not observe any

aberrant driving. McSorley adds that his red watery eyes and loud speech
____________________________________________


2
   The PBT test indicated a BAC of .117%.              Subsequent blood testing
revealed a BAC of .102%.



                                           -4-
J-A31003-14


do not support probable cause and highlights that his speech was not

slurred. In addition, McSorley notes that the officer did not testify that he

failed the field sobriety tests. Lastly, he posits that PBT tests are unreliable.

      “Probable cause justifying a warrantless arrest is determined by the

totality of the circumstances.” Commonwealth v. Weaver, 76 A.3d 562,

565 (Pa.Super. 2013), allowance of appeal granted on other ground, 86 A.3d

862 (Pa. 2014).      “Probable cause to arrest exists when the facts and

circumstances within the police officer's knowledge and of which the officer

has reasonably trustworthy information are sufficient in themselves to

warrant a person of reasonable caution in the belief that an offense has been

committed by the person to be arrested.” Id.

      Here, it is apparent that the suppression court failed to view the facts

under the totality of the circumstances.     Rather, the court separated each

fact and opined that the particular fact in question, standing alone, was

insufficient.   Specifically, it first reasoned that speeding does not create

probable cause for DUI. It added that flushed skin and watery eyes could be

explained by allergies.    The court further explained that McSorley’s loud

speech was not sufficient and that McSorley’s speech was not slurred.

Although it acknowledged that McSorley’s PBT test was positive for alcohol

and that he admitted to consuming one beer, the court asserted that it is not

criminal to consume alcohol and drive.




                                      -5-
J-A31003-14


       Considering the totality of the circumstances, however, it is evident

that Officer Hanna had probable cause to arrest McSorley for DUI.       The

suppression court erred in viewing each fact in isolation.       McSorley’s

excessive speeding, loud speech, the odor of alcohol on his breath,

admission to consuming beer, flushed skin, red eyes, and positive PBT test

establish reasonably trustworthy information to warrant a reasonable person

to conclude that McSorley was driving under the influence of alcohol.3 Since

the suppression court’s dismissal of the charges was premised on its

erroneous legal conclusion, it erred in dismissing the non-firearm charges

against McSorley.4




____________________________________________


3
   We are cognizant that PBT test results are inadmissible for purposes of
evidence at trial.   See Commonwealth v. Marshall, 824 A.2d 323
(Pa.Super. 2003). However, the inadmissibility of evidence at trial does not
automatically preclude it from consideration in deciding probable cause.
See Brinegar v. United States, 338 U.S. 160 (1949).
4
   We are aware that the firearm charge stemmed from recovery of weapons
in McSorley’s vehicle based on an inventory search. The suppression court
found the inventory search illegal on separate grounds. As noted, the
Commonwealth has not challenged that ruling on appeal.



                                           -6-
J-A31003-14


     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




                                  -7-
