J-A03027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER B. HAGARMAN

                            Appellant                  No. 929 MDA 2014


         Appeal from the Judgment of Sentence entered May 19, 2014
               In the Court of Common Pleas of Adams County
              Criminal Division at No: CP-01-CR-0000515-2013


BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 12, 2015

        Appellant, Christopher B. Hagarman, appeals from the judgment of

sentence imposed on May 19, 2014 in the Court of Common Pleas of Adams

County following his conviction of driving under the influence of alcohol

(DUI), general impairment, and DUI, highest rate of alcohol. 1      Appellant

contends the trial court erred in denying a motion to suppress evidence from

his traffic stop and argues his acquittal on a summary charge of driving on

roadways laned for traffic2 establishes there was neither probable cause nor



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*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(a)(1) and 3802(c), respectively.
2
    75 Pa.C.S.A. § 3309(1).
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reasonable suspicion to justify a non-investigative auto stop. We disagree

and, therefore, affirm.

      The trial court provided the following procedural history:

      Appellant’s convictions stem from an April 4, 2013 incident in
      which Corporal Michael Brandtonies of the Pennsylvania State
      Police stopped Appellant’s vehicle upon suspicion of DUI.
      Appellant filed an [Omnibus] Pre-Trial Motion for Suppression of
      Evidence and a hearing on the Motion was held on October 21,
      2013. This [c]ourt denied Appellant’s Motion by Opinion dated
      November 12, 2013. Following a non-jury trial held on January
      7, 2014, this [c]ourt found Appellant guilty of DUI, general
      impairment, and DUI, highest rate of alcohol, as second offenses
      for sentencing purposes. This [c]ourt found Appellant not guilty
      of a summary charge of driving on roadways laned for traffic and
      an additional count for a seat belt violation was withdrawn by
      the Commonwealth. On May 19, 2014, Appellant received a
      sentence of 60 months in the County Intermediate Punishment
      Program with the first 90 days in a restrictive setting. The DUI,
      general impairment conviction merged with the highest rate
      conviction for purposes of sentencing. Appellant filed his Notice
      of Appeal on June 3, 2014 and thereafter filed a Concise
      Statement of Matters Complained of on Appeal [p]ursuant to
      Pa.R.A.P. 1925(b).

      In his Concise Statement, Appellant contends that this [c]ourt
      erred in denying his suppression motion because, contrary to
      this [c]ourt’s prior determination, the arresting officer did not
      possess reasonable suspicion or probable cause to justify a stop
      of Appellant’s vehicle.

Trial Court 1925(a) Opinion, 7/16/14, at 1-2 (footnote omitted).

      In his Statement of Questions Involved pursuant to Pa.R.A.P. 2116,

Appellant presents the following issue, provided here verbatim:

      Did the Adams County Court of Common Pleas through the
      denial of Appellant’s Suppression Motion of 10/21/14 and the
      non-jury trial of 1/7/14 use of this illegally obtained evidence
      resulting in conviction and Judgment of Sentence of 5/19/14,
      violate the Appellant’s Right Against Illegal Search and Seizure,

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       Right Against Self-Incrimination and Right to Due Process
       respects of under 4th, 5th and 14th Amendment of U.S.
       Constitution and Act I, Sections 8 and 9 of Pa. Constitution.

       The Appellant alleges that the Commonwealth clearly violated
       such Rights by denial of such Motion To Suppress evidence
       resulting from an illegal non-investigate and investigation auto
       stop, resulting with such derivative resulting evidence being
       admissible in the Non-Jury Trial of 1/7/14, and being used by
       the Commonwealth as its main evidence in its case-in-chief.
       Such Trial ended in conviction of Defendant for the (2) DUI
       charges and not guilty of the Summary Roadway Violation and
       resulting in the Judgment of Sentence at issue, after
       Commonwealth withdrew Seat Belt charge.

       Where a particular Amendment or Section of the Federal of State
       Constitution provides an explicit textual source of Constitution
       protection against a particular sort of Government behavior (e.g.
       illegal search and seizure resulting in an illegal arrest) that
       Amendment or Section – not the generalized notion of
       substantive process – must be the guide for analysis of a
       Constitution violation. County of Sacramento v. Lewis 523 U.S.
       833 (1998). In case at bar violation of due process based on the
       illegal search and seizure lending to use of illegally obtained
       evidence from such seizure leading directly to the Appellant’s
       conviction and therefore violation of due process.

Appellant’s Brief at 4.3



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3
   We are constrained to direct the attention of Appellant’s counsel to the
Rules of Appellate Procedure, including Rule 2116 and its directive that
“[t]he statement of the question involved must state concisely the issues to
be resolved, expressed in the terms and circumstances of the case but
without unnecessary detail.” Pa.R.A.P. 2116. We also remind counsel that
Rule 2111(11) requires that the Rule 1925(b) statement of errors
complained of on appeal be included in an appellant’s brief, not the
reproduced record. Finally, we suggest that counsel familiarize himself with
proper case citation in accordance with Pa.R.A.P. 2119(b), in particular the
citation format for cases from this Court and our Supreme Court.



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      Our reading of Appellant’s statement of questions presented suggests

that the underlying issue in this case is whether the trial court erred in

denying Appellant’s motion to suppress the evidence stemming from the

traffic stop that occurred on April 4, 2013, evidence that subsequently

resulted in his DUI convictions.

      As this Court has recognized, when reviewing the denial of a motion to

suppress:

      We are limited to determining whether the lower court’s factual
      findings are supported by the record and whether the legal
      conclusions drawn therefrom are correct. We may consider the
      evidence of the witnesses offered by the Commonwealth, as
      verdict winner, and only so much of the evidence presented by
      [the] defense that is not contradicted when examined in the
      context of the record as a whole. We are bound by facts
      supported by the record and may reverse only if the legal
      conclusions reached by the court were erroneous.

Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa. Super. 2010 (en

banc) (quoting Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super.

2006)).     Because the defense did not present any evidence at the

suppression hearing, we must determine whether the trial court’s factual

findings are supported by the evidence offered by the Commonwealth’s

witness, arresting officer Corporal Michael Brandtonies.   We are bound by

those facts supported by the record and may reverse only if the trial court’s

legal conclusions are erroneous.

      Following the suppression hearing, the trial court issued the following

findings of fact:


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     1. On April 4, 2013, Corporal Michael Brandtonies of the
        Pennsylvania State Police was on patrol on Pa. Route 116 in
        Adams County, Pennsylvania.

     2. Corporal Brandtonies is an experienced Pennsylvania State
        Police Trooper with extensive training in DUI enforcement,
        detection of impaired drivers and detection of persons
        generally under the influence of alcohol and controlled
        substances. During the course of Corporal Brandtonies[’]
        career, he has served as a standard field sobriety test
        instructor and as a drug recognition expert for two years, has
        completed ARIDE Training, and has extensive experience in
        DUI enforcement. He has made approximately 400 DUI
        arrests.

     3. In the early morning hours on April 4, 2013, Corporal
        Brandtonies was in a marked police car following a vehicle
        operated by [Appellant] on Pa. Route 116.

     4. Corporal Brandtonies observed [Appellant’s] vehicle cross the
        fog line repeatedly and continually weave across the
        centerline. [Appellant’s] vehicle was also weaving within his
        lane of travel.    Corporal Brandtonies testified that such
        driving behaviors may be indicative of an impaired driver.

     5. According to Corporal Brandtonies, [Appellant’s] vehicle came
        dangerously close to striking guardrails and mailboxes on the
        right hand side of the road.

     6. Upon initiating the vehicle stop, Corporal Brandtonies
        encountered [Appellant] and immediately noticed a strong
        odor of alcohol. He did not observe any signs that alcohol
        was spilled on [Appellant’s] person. He concluded that the
        strong odor of alcohol was coming from [Appellant’s] breath.

     7. [Appellant] was the operator of the motor vehicle and the
        sole occupant of the motor vehicle.

     8. Corporal Brandtonies asked [Appellant] two times for
        [Appellant’s] driver’s license. [Appellant] exhibited depressed
        motor skills, had blood shot and glassy eyes and informed the
        Officer that he had nothing to drink on the evening in
        question.


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       9. Based upon his observations, Corporal Brandtonies asked
          [Appellant] to submit to the standard field sobriety testing.
          Initially, Corporal Brandtonies, based upon [Appellant’s]
          representation that he had not had anything to drink, asked
          [Appellant] to submit to HGN Testing in order to detect
          whether [Appellant] was under the influence of controlled
          substances. Corporal Brandtonies could not accurately score
          the test because [Appellant] would not follow the test
          directions.

       10. Corporal Brandtonies then administered the walk and turn
          test.  [Appellant] failed the test as he was unbalanced,
          stepped left and right of the line, was unable to make heel to
          toe contact at all, and raised his arms for balance.
          [Appellant’s] performance was so bad that Corporal
          Brandtonies stopped the test prior to [Appellant’s] ninth step.

       11. Corporal Brandtonies then administered a portable breath
          test on an approved, calibrated device. The portable breath
          test reading was .129%.

       12. After Corporal Brandtonies confronted [Appellant] with the
          result, [Appellant] changed his story and informed Corporal
          Brandtonies that he had one beer.

       13. Based upon the foregoing, Corporal Brandtonies placed
          [Appellant] under arrest and transported him to Gettysburg
          Hospital for blood alcohol testing.

Opinion on [Appellant’s] Omnibus Pre-Trial Motion, 11/12/13, at 1-3.4


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4
  In its 1925(a) opinion, the trial court explained that its opinion on
Appellant’s omnibus pre-trial motion was prepared without benefit of the
suppression hearing transcript. Trial Court 1925(a) Opinion, 7/16/14, at 1
n.1. The trial court admitted its error in stating Appellant’s vehicle crossed
the center line (Findings of Fact at ¶4) and acknowledged the officer testified
that Appellant’s vehicle did not cross the center line. The court explained,
“This error was noted by this [c]ourt at trial and did not change the
determination that the stop was lawful in light of the affiant’s other
observations regarding Appellant’s driving behavior.” Id.



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      Based on our review of the suppression hearing transcript, we

conclude the evidence supports the trial court’s findings of fact, with the

exception of its erroneous recollection that the officer observed Appellant

cross over the centerline of the roadway.          In light of the trial court’s

explanation of that factual misstatement, we accept those findings of fact

and examine the trial court’s legal conclusions.

      In its opinion in support of denying the suppression motion, the trial

court explained that section 6308 of the Motor Vehicle Code authorizes a

police officer to stop a vehicle if the officer has reasonable suspicion that a

provision of the code has been or is being violated.        Id. at 3 (citing 75

Pa.C.S.A. § 6308(b)). The trial court explained that the underlying offense

must be one that is capable of further investigation.               Id. (citing

Commonwealth v. Chase, 960 A.2d 108, 115-16 (Pa. 2008)). Reasonable

suspicion is the appropriate standard for DUI, an offense capable of post-

stop investigation. Id. (citing Chase, 960 A.2d at 116)).

      The trial court’s inquiry turned to whether Corporal Brandtonies had

reasonable suspicion that Appellant was operating a vehicle while impaired.

Noting the officer’s extensive experience and training in DUI matters, having

served as a drug recognition expert and a field sobriety instructor and

having made more than 400 DUI arrests, in conjunction with the physical

observations to which the officer testified, the trial court concluded the




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officer had reasonable suspicion to stop Appellant’s vehicle to investigate

further whether Appellant was under the influence of alcohol. Id. at 4-5.

      The trial court then turned its attention to whether, during the stop,

Corporal Brandtonies had probable cause to arrest Appellant for DUI. The

court looked to 75 Pa.C.S.A. § 3811, which provides in pertinent part:

      [A] police officer is authorized to arrest an individual without a
      warrant if the officer has probable cause to believe that the
      individual has violated section . . . 3802 (relating to driving
      under the influence of alcohol or controlled substance) . . .
      regardless of whether the alleged violation was committed in the
      presence of the police officer.

Id. at 5.   Quoting Commonwealth v. Angel, 946 A.2d 115, 118 (Pa.

Super. 2006), the trial court noted that “probable cause exists when 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.”      Id.    The trial court reiterated the officer’s

observations, including the odor of alcohol emanating from Appellant’s

vehicle, but the absence of any open containers or spills on Appellant’s

clothing to account for the odor, along with the officer’s report that Appellant

failed to produce his driver’s license upon the first request, exhibited

depressed motor skills and had bloodshot, glassy eyes.          Id. at 6.    In

addition, Appellant was unable to follow directions for the HGN test and then

failed the walk and turn test. Id. When the portable breath test produced a

reading of .129%, Appellant admitted to consuming one beer seven hours

earlier, even though he initially denied consuming any alcohol in the hours

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preceding the traffic stop.    Id.   Cognizant of the fact “[p]robable cause

justifying a warrantless arrest is determined by the totality of the

circumstances,” Angel, 946 A.2d at 118, the trial court concluded that

Corporal Brandtonies “clearly had probable cause to arrest [Appellant] on

suspicion of driving under the influence of alcohol.” Opinion on [Appellant’s]

Omnibus Pre-Trial Motion, 11/12/13, at 6.

      As noted above, at the conclusion of Appellant’s non-jury trial, the trial

court found Appellant guilty of the DUI charges but acquitted him of the

summary charge relating to driving on roadways laned for traffic.        In his

brief, Appellant raises the issue of the acquittal in support of his assertion

that “there was no basis for either a non-investigating auto stop based on

probable cause because of not staying within the proper lane for traffic, nor

a reasonable suspicion of possible DUI for an investigating auto stop.”

Appellant’s Brief, at 16 (emphasis in original).

      The trial court addressed that argument in its 1925(a) opinion, stating:

      Appellant argues that this [c]ourt’s determination that Appellant
      was not guilty of the summary vehicle code offense of failing to
      maintain his vehicle within a single lane of traffic supports his
      argument that the corporal did not have probable cause to stop
      him under that provision or reasonable suspicion to suspect that
      Appellant was driving under the influence of alcohol. However,
      contrary to Appellant’s assertion, Corporal Brandtonies stopped
      Appellant’s vehicle under suspicion of DUI and articulated
      sufficient facts and circumstances to support his suspicion.




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Trial Court 1925(a) Opinion, 7/16/14, at 3-4.5

       In Feczko, this Court considered an appeal from the denial of a

motion to suppress evidence of DUI and summarized developments in

Pennsylvania law concerning the requisite cause for a traffic stop. Id., 10

A.3d at 1287. The Court explained that the Legislature’s 2004 amendments

to 75 Pa.C.S.A. § 6308(b) injected a “reasonable suspicion” standard for a

traffic stop in place of the former “articulable and reasonable grounds”

standard. Id. The Court reviewed our Supreme Court’s decision in Chase,

which considered the constitutionality of the reasonable suspicion standard

under both the Fourth Amendment and Article I, Section 8 of the

Pennsylvania       Constitution,      and      included   the   Supreme   Court’s

pronouncement that:

       The amendment of § 6308(b) accomplished the elimination of a
       unique and higher statutory threshold for stops for Vehicle Code
       offenses; the amendment indicated the legislature did not wish
       to create a higher standard than that required under the
       Constitution. That said, one must remember the reason why the
       Constitution tolerates the lesser standard articulated in [Terry v.
       Ohio, 392 U.S. 1 (1968)]—the detention is allowed to maintain
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5
  In its 1925(a) opinion, the trial court—with the benefit of the suppression
hearing transcript—further amplified its factual findings, noting Corporal
Brandtonies’ observations of Appellant’s vehicle rhythmically weaving from
the centerline to the outside edge of the roadway; driving on or over the
white fog line on two or three occasions; coming close to striking the
guardrail and mailboxes along the side of the road; and moving to the center
of the roadway upon negotiating several bends in the road, a behavior the
corporal considered atypical; all of which led to the corporal’s reasonable
suspicion that Appellant was impaired.        Trial Court 1925(a) Opinion,
7/16/14, at 3 (citing N.T. Suppression Hearing, 10/21/13, at 8).



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      the status quo so the officer may conduct a brief and safe
      investigation to see if indeed there is criminal activity afoot.
      Extensive case law supports the conclusion a vehicle stop for
      DUI may be based on reasonable suspicion, as a post-stop
      investigation is normally feasible. However, a vehicle stop based
      solely on offenses not “investigatable” cannot be justified by a
      mere reasonable suspicion, because the purposes of a Terry
      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, 10 A.3d at 1290 (quoting Chase, 960 A.2d. at 115-16).

      The trial court applied the holding of Chase in its determination that a

reasonable suspicion standard applied in Appellant’s case and that Corporal

Brandtonies articulated specific facts to support his actions in stopping

Appellant’s vehicle. We find the traffic stop of Appellant’s vehicle was legal

and that the trial court properly denied the motion to suppress.       Because

Appellant is not entitled to relief based on any issue presented in this appeal,

we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




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