J-S24044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK LEROY WILDASIN, JR.,                  :
                                               :
                       Appellant               :      No. 1750 MDA 2017

           Appeal from the Judgment of Sentence October 16, 2017
               in the Court of Common Pleas of Adams County,
             Criminal Division at No(s): CP-01-CR-0001306-2016

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 23, 2018

       Mark Leroy Wildasin, Jr. (“Wildasin”), appeals from the judgment of

sentence imposed following his convictions of three counts of driving under

the influence (“DUI”), and one count each of endangering welfare of children,

careless driving, and restrictions on alcoholic beverages.1 We affirm.

       On August 3, 2016, Wildasin drove to McDonald’s, with his one-year-old

daughter as a passenger, where a drive-through employee noticed an open

beer can between Wildasin’s legs and called police. N.T., 2/13/17, at 6. The

witness provided police with Wildasin’s license plate number, a physical

description of Wildasin and his vehicle, and the direction in which he was

headed upon leaving McDonald’s. Id. at 7. Police dispatch sent out a notice




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1  See 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3802(b); 18 Pa.C.S.A.
§ 4304(a)(1); 75 Pa.C.S.A. §§ 3714(a), 3809(a).
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over the radio with the information provided by the witness and Wildasin’s

home address. Id. at 6-7.

      Officer Darren David (“Officer David”), of the Pennsylvania Game and

Wildlife Commission, was the first officer to make contact with Wildasin at his

home. N.T., 8/17/17, at ¶ 4, Exhibit 5 (Stipulations). At the home, Officer

David observed an SUV matching the description by the eyewitness, and

bearing the same license plate number, and Wildasin, who was standing in his

driveway next to the vehicle. Id. Officer David observed Wildasin exhibit

signs of intoxication, including an odor of alcohol, slurred speech, glassy eyes,

and difficulty with balance. Id. at ¶ 5. When asked, Wildasin admitted to

consuming alcohol. Id. Shortly thereafter, Reading Township Officer Greg

Morehead (“Officer Morehead”) arrived and also observed Wildasin exhibit an

odor of alcohol, difficulty with balance, slurred speech, and glassy eyes. Id.

at ¶ 6.    When asked by Officer Morehead, Wildasin again admitted to

consuming alcohol. Id. Wildasin advised the two officers that there was an

open beer in his vehicle, and two unopened beers in a cooler in the vehicle.

Id. at ¶ 7. He also commented to the officers that he was “fucked … because

he was drinking.” Id.

      Less than fifteen minutes following the radio dispatch, Pennsylvania

State Trooper Maeve A. Hoffman (“Trooper Hoffman”) arrived and assumed

control of the investigation. N.T., 2/13/17, at 8-10, 13. Trooper Hoffman

observed that Wildasin was emanating an odor of alcohol and had slurred

speech, and that Wildasin’s eyes were glassy and bloodshot. Id. at 8-10.

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Wildasin admitted to Trooper Hoffman that he had consumed two beers prior

to driving to McDonald’s, and Trooper Hoffman observed in plain sight an open

beer can sitting on the front driver-side floor of Wildasin’s vehicle. Id. at 10-

12.   Trooper Hoffman conducted standardized field sobriety tests and a

preliminary breath test (“PBT”). Id. at 12-13. As a result of her observations

and a positive reading from the PBT, Trooper Hoffman placed Wildasin under

arrest. Id. at 13. Wildasin was taken to a local hospital where his blood was

drawn2 and subsequently sent to the Pennsylvania State Police lab for

analysis.   N.T., 8/17/17, at ¶ 10, Exhibit 5.    Wildasin’s sample returned a

blood alcohol concentration of 0.167%.           Id. at ¶ 11.     Wildasin was

subsequently charged with the above-described offenses.

       Wildasin filed a Motion to suppress evidence, arguing, in relevant part,

that (1) he was subjected to a custodial detention without probable cause;

and (2) alternatively, he was subjected to an investigative detention without

reasonable suspicion; both in violation of the Fourth Amendment of the United

States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

Following a hearing and submission of briefs, the trial court denied Wildasin’s

Motion.     The trial court determined that Trooper Hoffman possessed
____________________________________________


2 Trooper Hoffman testified that prior to Wildasin’s blood test, she advised him
of his rights by using a modified DL-26 form, which omits any threat of criminal
penalties for failure to submit to a blood draw. See N.T., 2/13/17, at 14-15;
id. at Exhibit 1.        Therefore, no Birchfield issue is present.         See
Commonwealth v. Smith, 177 A.3d 915, 922 (Pa. Super. 2017) (stating
that Birchfield is inapplicable where the defendant is not advised of criminal
penalties for refusing to consent to a blood draw) (citing Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016)).

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reasonable suspicion to subject Wildasin to an investigative detention based

on the tip provided by the named witness and Trooper Hoffman’s

corroboration of the identifying factors regarding Wildasin’s vehicle.

      Following a stipulated bench trial, Wildasin was convicted of the above-

described offenses and sentenced to serve sixty months of intermediate

punishment, followed by thirty-six months of probation, and ordered to pay

fines, totaling $1,150.00. Wildasin filed a timely Notice of Appeal and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

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

      I. Was the detention of [Wildasin] in violation of the Fourth
      Amendment and Article 1 Section 8 of the Pennsylvania
      Constitution?

      II. Was the evidence presented to the trial court insufficient to
      support a conviction for restriction on alcoholic beverages under
      section 3809(a) of the Pennsylvania Motor Vehicle Code?

      III. Was the evidence presented to the trial court insufficient to
      support a conviction for carelss [sic] driving under section 3714(a)
      of the Pennsylvania Motor Vehicle Code?

Brief for Appellant at 5 (capitalization omitted).

      In his first claim, Wildasin challenges the trial court’s Order denying his

Motion to suppress. See id. at 9-18. Wildasin alleges that his rights under

the Fourth Amendment of the United States Constitution and Article I, Section

8 of the Pennsylvania Constitution, were violated when police subjected him

to an investigatory detention without the requisite level of suspicion to detain


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him, and as a result, any evidence obtained following the detention should

have been suppressed. See id. at 10-14, 21. He argues that Officer David

and Officer Morehead detained him without reasonable suspicion of him having

engaged in criminal activity. See id. at 10-13. Wildasin further alleges that

Trooper Hoffman lacked reasonable suspicion to detain Wildasin when she

arrived at the scene. See id. at 13-14. Wildasin argues that the tip from the

McDonald’s employee made no mention of his condition or the quality of his

driving. See id. at 14. Therefore, according to Wildasin, the police had no

information to conclude that criminal activity was occurring. See id.

     Wildasin alleges, in the alternative, that the officers required probable

cause to detain him, because the charge they were investigating, restrictions

on alcoholic beverages, was not “investigable.” See id. at 14-18. He argues

that the police were responding to an “open container” violation pursuant to

75 Pa.C.S.A. § 3809(a). See id. at 14-16. Wildasin states that because when

he was detained, he was no longer operating his vehicle, and his vehicle was

not located on a Pennsylvania highway, no evidence to charge him under

section 3809 could have been discovered. See id. at 17. He argues that

because the police did not have probable cause, their detention of him was




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illegal and any evidence obtained as a result must be suppressed. See id. at

17-18, 21.3

             Our standard of review in addressing a challenge to a trial
       court’s denial of a suppression motion is whether the factual
       findings are supported by the record and whether the legal
       conclusions drawn from those facts are correct. When reviewing
       such a ruling by the suppression court, we must consider only the
       evidence of the prosecution and so much of the evidence of the
       defense as remains uncontradicted when read in the context of
       the record. Where the record supports the findings of the
       suppression court, we are bound by those facts and may reverse
       only if the legal conclusions drawn therefrom are in error.
       Moreover, appellate courts are limited to reviewing only the
       evidence presented at the suppression hearing when examining a
       ruling on a pre-trial motion to suppress.

Evans, 153 A.3d at 327 (citations, quotation marks, ellipses, and brackets

omitted).

       “The Fourth Amendment of the Federal Constitution and Article I,

Section     8   of   the   Pennsylvania    Constitution   protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012).            There are three categories of interactions

between police and a citizen:

       The first of these is a “mere encounter” (or request for
       information)[,] which need not be supported by any level of
       suspicion, but carries no official compulsion to stop or to respond.
____________________________________________


3 While Wildasin argues that analysis of the stop must begin with the inquiries
by Officers David and Morehead, no testimony regarding their interaction with
Wildasin was provided at the suppression hearing.          Thus, we address
Wildasin’s claims with Trooper Hoffman’s testimony. See Commonwealth
v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016) (noting this Court is “limited
to reviewing only the evidence presented at the suppression hearing when
examining a ruling on a pre-trial motion to suppress.”) (citation omitted).

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        The second, an “investigative detention[,]” must be supported by
        a reasonable suspicion; it subjects a suspect to a stop and a period
        of detention, but does not involve such coercive conditions as to
        constitute the functional equivalent of an arrest. Finally, an arrest
        or “custodial detention” must be supported by probable cause.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation

omitted).

        Upon review, Trooper Hoffman testified that a named informant

provided information that Wildasin was driving with an open can of beer

between his legs, and further gave Wildasin’s license plate number, the color

and a description of his vehicle, a description of his physical features, and the

direction that his vehicle was heading. See N.T., 2/13/17, at 6-7. Trooper

Hoffman stated that, less than fifteen minutes later, she found the described

vehicle in the driveway of Wildasin’s residence and corroborated the details

given by the witness. See id. at 8-9, 13. She identified Wildasin, who was

standing next to his vehicle and was exhibiting signs of intoxication, including

slurred speech, glassy and bloodshot eyes, and an odor of alcohol. See id. at

8-10.    Trooper Hoffman testified that when she arrived, Officer David and

Officer Morehead were already at Wildasin’s home, each with their own police

vehicles. See id., at 8-10, 17-18. Trooper Hoffman stated that Wildasin was

not placed in handcuffs or otherwise detained, and none of the officers were

brandishing a weapon. See id. at 9-10. Trooper Hoffman advised Wildasin

that she was investigating an open container violation and engaged in




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questioning targeted at determining whether Wildasin had engaged in criminal

activity. See id. at 10-11.

       These circumstances would suggest that Wildasin was not subjected to

such coercive conditions as to constitute the functional equivalent of an arrest.

Therefore, Trooper Hoffman’s inquiry constitutes an investigative detention.

Compare Commonwealth v. Martin, 705 A.2d 887, 891 (Pa. Super. 1997)

(finding an investigative detention where three uniformed officers approached

the defendant, advised him that he was suspected of illegal activity, and

subjected him to questioning), with Commonwealth v. Hannon, 837 A.2d

551, 554 (Pa. Super. 2003) (finding an arrest where the defendant was

“ordered out of the car at gunpoint and restrained with handcuffs.”).

Therefore, in order for Trooper Hoffman’s initial detention to be constitutional,

she needed to have reasonable suspicion that criminal activity was afoot.4

See Martin, 705 A.2d at 892.




____________________________________________


4 We are not convinced by Wildasin’s argument that the police officers required
probable cause to detain him because the criminal offense they were
investigating, restrictions on alcoholic beverages, was not “investigatable.”
See Brief for Appellant at 14-18. To the contrary, upon further investigation
of Wildasin’s vehicle, the police could have reasonably expected to find the
open beer can witnessed by the McDonald’s employee. Unlike other traffic
infractions that have been found not investigatable, such as failure to maintain
a single lane, see Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa.
Super. 2010), or failure to yield to an emergency vehicle, see
Commonwealth v. Busser, 56 A.3d 419, 420 (Pa. Super. 2012), an open
container violation requires additional physical evidence, i.e., the “open
container,” which may be discovered after the vehicle is stopped.

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      Here, the tip from the named witness, combined with Trooper Hoffman’s

corroboration of the description of Wildasin’s vehicle and her observation that

Wildasin was exhibiting signs of intoxication, provided reasonable suspicion

for   Trooper    Hoffman     to    conduct    an   investigative    detention.    See

Commonwealth v. Barber, 889 A.2d 587, 594-96 (Pa. Super. 2005) (stating

that police had reasonable suspicion where they received a tip from an

identified source stating that a man was drinking a beer while driving a van in

a parking lot, and giving a description of the man, his vehicle, the license plate

number, and the vehicle’s location, and police corroborated the tip by

responding to the location and identifying a vehicle and a man matching the

description     given   by   the   source).        Accordingly,    Trooper   Hoffman’s

investigatory detention of Wildasin was constitutional.

      We will address Wildasin’s sufficiency of the evidence claims together.

Wildasin challenges the sufficiency of the evidence for his convictions of

restriction on alcoholic beverages and careless driving under sections 3809(a)

and 3714(a), respectively, of the Pennsylvania Motor Vehicle Code. See Brief

for Appellant at 18-20.      Wildasin alleges that the Commonwealth failed to

prove two elements of 3809(a): that Wildasin (1) possessed an open alcohol

container, (2) while driving on a highway.            Id. at 19-20.     Under section

3714(a), careless driving, Wildasin alleges that the Commonwealth failed to

prove that he drove his vehicle “in careless disregard for the safety of persons

or property.” Id. at 18-19.


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      We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

             [W]hether[,] viewing all the evidence admitted at trial in the
      light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so weak
      and inconclusive that as a matter of law no probability of fact may
      be drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact[,] while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, or part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      75 Pa.C.S.A. § 3809(a), in relevant part, states, “an individual who is

an operator … in a motor vehicle may not be in possession of an open alcoholic

beverage container or consume … an alcoholic beverage in a motor vehicle

while the motor vehicle is located on a highway in this Commonwealth.” 75

Pa.C.S.A. § 3809(a). Therefore, the Commonwealth was required to prove

that Wildasin (1) operated a vehicle, (2) on a Pennsylvania highway, (3) while

in possession of or consuming an alcoholic beverage. See id. Highway is

defined as




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      [t]he entire width between the boundary lines of every way
      publicly maintained when any part thereof is open to the use of
      the public for purposes of vehicular travel. The term includes a
      roadway open to the use of the public for vehicular travel on
      grounds of a college or university or public or private school or
      public or historical park.

Id. § 102.

      The evidence, viewed in a light most favorable to the Commonwealth,

establishes that the McDonald’s employee witnessed Wildasin in possession of

an open alcoholic beverage while driving, immediately prior to entering a

Pennsylvania highway. See N.T., 8/17/17, at ¶ 3, Exhibit 5. Less than fifteen

minutes later, Trooper Hoffman found an open alcoholic beverage container

within Wildasin’s vehicle, see N.T., 2/13/17, at 11, and Wildasin admitted that

he had just returned from driving to McDonalds, see N.T., 8/17/17, at ¶ 5,

Exhibit 5.   Therefore, the evidence is sufficient to establish that Wildasin

operated his vehicle on a Pennsylvania highway while in possession of an open

alcoholic beverage.   See Melvin, 103 A.3d at 39-40 (stating that “[t]he

Commonwealth may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial evidence.”).

      In order to sustain a conviction under 75 Pa.C.S.A. § 3714(a), the

Commonwealth must prove that the defendant drove “a vehicle in careless

disregard for the safety of persons or property.” See id.

      Here, the evidence, viewed in a light most favorable to the

Commonwealth, establishes that Wildasin drove, with a young child in the

vehicle, while consuming an alcoholic beverage. Therefore, the evidence is

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sufficient to sustain Wildasin’s conviction of 75 Pa.C.S.A. § 3714(a).   See

Melvin, supra.

     Judgment of sentence affirmed.

     Judge Kunselman joins the memorandum.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/23/2018




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