J-S67036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CORY MITCHELL

                            Appellant                 No. 193 EDA 2016


          Appeal from the Judgment of Sentence December 10, 2015
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0000634-2013


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED SEPTEMBER 12, 2016


       Appellant Cory Mitchell appeals from the Judgment of Sentence

entered on December 10, 2015, in the Court of Common Pleas of

Montgomery County, which, sitting as finder of fact in a non-jury trial, found

Appellant guilty of five DUI charges arising out of a single incident.1

Appellant contends the suppression court erroneously determined officers

had probable cause to arrest him. Following a careful review, we affirm.

       The trial court aptly has set forth the facts derived from the officers’

suppression hearing testimony as follows:

____________________________________________


1
   75 Pa.C.S.A. §§ 3802(a)(1), (c), (d)(1)(i), (d)(1)(iii), and (d)(3),
respectively.


*Former Justice specially assigned to the Superior Court.
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              On July 20, 2012, Montgomery Township Patrol Officer
       Jake Beebe was involved in a motor vehicle accident with
       [Appellant]. Hatfield Township Police Department was contacted
       to conduct a nonpartisan investigation of the accident. Hatfield
       Township Patrol Officer Jefferey[2] Richardson conducted an
       investigation and determined that Officer Beebe was at fault for
       the accident.
              Montgomery Township Patrol Officer David Dunlap, a 28
       year veteran with the Police Department, also responded to the
       scene of the accident. Upon speaking with [Appellant], Officer
       Dunlap immediately noticed his slurred speech and the odor of
       alcohol on his breath. Officer Dunlap asked [Appellant] if he had
       been drinking.       [Appellant] admitted that he previously
       consumed three beers and that he finished his last beer about
       forty-five minutes prior to the accident.
              Next, Officer Dunlap requested that [Appellant] perform
       field sobriety tests. Officer Dunlap gave [Appellant] instructions
       on how to perform five different field sobriety tests. After each
       set of instructions, [Appellant] performed the test to the best of
       his ability. [Appellant] passed an alphabet test. [Appellant]
       failed a numerical countdown test by failing to following [sic]
       instructions.     [Appellant] also failed a Horizontal Gaze
       Nystagmus test (“HGN”), a walk and turn test and a one leg
       stand test. Subsequently, Officer Dunlap placed [Appellant]
       under arrest for DUI and transported [Appellant] to Lansdale
       Hospital for a blood test.[3]
              On October 7, 2014, [Appellant] filed the present Motion to
       Suppress. On December 5, 2014, this Court began a bifurcated
       hearing to decide the motion. The hearing was concluded on
       March 23, 2015.

Trial Court Order Sur: Suppression, filed 4/16/2015, at 1-2.



____________________________________________


2
  The suppression court also spells Officer Richardson’s first name “Jeffery”
in suppression order, see infra.
3
  Appellant’s BAC was .18 and the presence of THC (the abbreviation for
Tetrahydrocannbinol, the active ingredient in hashish and marijuana) also
was detected therein. N.T. Sentencing, 12/10/15, at 5.




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       Based on the aforementioned testimony, the trial court denied

Appellant’s pre-trial suppression motion, and after waiving his right to a jury

trial, Appellant proceeded to a waiver trial based on stipulated facts on July

10, 2015. The trial court convicted Appellant of the offenses indicated supra

and sentenced him to an aggregate term of ninety (90) days to five (5)

years in prison.4     This timely, counseled appeal followed, and all Pa.R.A.P.

1925 requirements have been met. In his appellate brief, Appellant raises

the following issue for our review:

       Whether the suppression court committed an error of law and/or
       abused its discretion in denying Appellant[‘s] [] motion to
       suppress his arrest where the Commonwealth’s evidence failed
       to establish probable cause for officers to believe that Appellant
       [] was in violation of 3802 of the Motor Vehicle Code.

Brief for Appellant at 5.

       This Court’s well-settled standard of review for challenges to the denial

of a suppression motion is as follows:

       [An appellate court's] standard of review in addressing a
       challenge to the denial of a suppression motion is limited to
       determining whether the suppression court's factual findings are
       supported by the record and whether the legal conclusions
       drawn from those facts are correct. Because the Commonwealth
       prevailed before the suppression court, we may consider only
       the evidence of the Commonwealth 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 suppression court's
       factual findings are supported by the record, [the appellate court
____________________________________________


4
 The parties agreed that all of the charges merged for sentencing purposes
with Count 5, DUI: Controlled Substances, 75 Pa.C.S.A. § 3802(d)(3). N.T.
Sentencing, 12/10/15, at 5.



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      is] bound by [those] findings and may reverse only if the court's
      legal conclusions are erroneous. Where ... the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court's legal conclusions are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts. Thus,
      the conclusions of law of the courts below are subject to [ ]
      plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa.Super. 2015),

reargument denied (Sept. 30, 2015), appeal denied, 135 A.3d 584 (Pa.

2016) (citation omitted) (brackets in original).         In addition, our scope of

review from a suppression ruling is limited to the evidentiary record that was

created at the suppression hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073,

1087 (2013).      Moreover, our standard of review is highly deferential with

respect     to   the   suppression   court's   factual   findings   and   credibility

determinations which are within its sole province. Commonwealth v.

Shabezz, 129 A.3d 529, 532 (Pa.Super. 2015).

      Under constitutional jurisprudence, 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. 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. Fleet, 114 A.3d 840, 845 (Pa.Super. 2015) (citation

omitted).

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       The relevant inquiry herein is whether Officer Dunlap had probable

cause to arrest Appellant for DUI. “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 a police officer’s knowledge are based upon reasonably

trustworthy information and are sufficient to warrant one of reasonable

caution in the belief that the suspect has committed or is committing a

crime. In determining whether probable cause exists, this Court applies a

totality of the circumstances test.     Commonwealth v. Delvalle, 74 A.3d

1081, 1085 (Pa.Super. 2013).       “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, 604 Pa. 198, 203, 985 A.2d 928, 931

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

original).

       At the suppression hearing, Officer Beebe testified that as he was

making a U-turn to pursue a vehicle with an equipment violation, a second

vehicle collided with him and struck his bumper from behind.                   N.T.

Suppression, 12/5/14, at 6.     He and his partner, Officer Andrew Benner,


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initially approached Appellant, the driver of the second vehicle, to discern

whether Appellant had been injured. Id. at 7.5

       Officer Dunlap testified that in his capacity as a police officer with the

Montgomery Township Police Department for approximately thirty years, he

had been involved in approximately five hundred to six hundred incidents

involving an individual under the influence of drugs or alcohol. Id. at 21-22.

He had training in field sobriety testing and Horizontal Gaze Nystagmus

(HGN) testing as well.        Id. at 23.       Upon his arrival at the scene, Officer

Dunlap was informed by Officer Benner that he may wish to speak with

Appellant as it appeared to Officer Benner Appellant had been drinking. Id.

at 52, 62. Officer Dunlap approached Appellant to discuss the circumstances

surrounding the motor vehicle accident and “immediately detected an odor

of alcoholic beverage on his breath when talking to him” and noticed his

speech was “a little slurred.”        Id. at 27-28.      When Officer Dunlap asked

Appellant if he had been drinking, the latter admitted he had and indicated

he had “maybe three beers earlier” the last of which he had consumed about

forty-five minutes before the accident. Id. at 29. Based upon Appellant’s

admission, Officer Dunlap asked Appellant to perform various field sobriety

tests. Id.


____________________________________________


5
  This encounter was captured by the patrol vehicle’s camcorder and played
for the suppression court. Id. at 8, 13.



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      While   Appellant    was   able   to    recite   the   alphabet,   he   did   so

“deliberately” and “methodically.” When asked to count backward from 69

to 53, Appellant did not follow Officer Dunlap’s instructions and instead

counted back to 52. Id. at 30-31. Officer Dunlap performed three tests as

part of the HGN after each of which he detected nystagmus, which indicated

to him “there’s alcohol involved and possible impairment.”           Id. at 31-35.

When Officer Dunlap had Appellant complete the “walk-and-turn-test,” he

noticed Appellant had trouble maintaining his balance.               Id. at 35-37.

Finally, Officer Dunlap remarked that Appellant had difficulty completing the

“one-leg stand test.”     Id. at 38-40.      Based upon the entire interaction he

had with Appellant, Officer Dunlap opined Appellant was under the influence

of alcohol and could not drive safely and placed him under arrest for DUI.

Id. at 40-41, 61. Officer Dunlap then transported Appellant to Lansdale

Hospital so a chemical test could be performed. Id. at 40-41.

      In support of its finding that Officer Dunlap testified credibly and had

probable cause to believe Appellant was driving under the influence of

alcohol and to subsequently arrest him, the suppression court reasoned as

follows:

            Here, Officer Dunlap spoke with [Appellant] and
      immediately noticed the odor of alcohol on his breath. By way of
      [Appellant’s] admission, Officer Dunlap learned that [Appellant]
      had recently consumed alcohol.            Officer Dunlap then
      administered five different field sobriety tests, which assisted
      him in determining whether [Appellant] was intoxicated. Officer
      Dunlap observed signs of impairment on four of the five field
      sobriety tests. Based on his extensive training and experience,

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      his observations of impairment and [Appellant’s] admission,
      Officer Dunlap determined that [Appellant] was incapable of
      safely driving due to the influence of alcohol. Subsequently,
      Officer Dunlap arrested [Appellant] for DUI.
              [Appellant] asks this [c]ourt to place particular weight on
      the observations, or lack thereof, of a police officer who was
      unavailable to testify at this hearing. In support of this position,
      [Appellant] submitted the accident report created by Officer
      Jeffrey     Richardson.   Officer   Richardson’s    report,   which
      determined the cause of the accident, contains no mention of
      [Appellant] being intoxicated. After this incident, Officer
      Richardson retired and cannot be located. Accordingly, Officer
      Richardson did not testify at the hearing. [Appellant] argues
      that due to Officer Richardson’s absence, this [c]ourt should
      infer that he would have testified that [Appellant] was not
      intoxicated. This [c]ourt believes that such an inference has
      little effect on the inquiry of whether probable cause did or did
      not exist. Therefore, this [c]ourt finds Officer Dunlap credibly
      had probable cause to believe that [Appellant] was DUI and the
      arrest of [Appellant] was lawful.

Trial Court Order Sur: Suppression, filed 3/4/16, at 3.

      Appellant maintains that “[w]hile arguably, standing alone, Officer

Dunlap’s claimed observations could be sufficient to establish probable

cause, closer examination of those observations and the conclusions drawn

therefrom demonstrates that they are not reliable.” Appellant also states it

is undisputed that he “was involved in an accident that was caused entirely

by the negligence of Montgomery Township rookie officer Beebe, and that

Appellant [ ] admitted to drinking three beers earlier in the day.” Brief for

Appellant at 14.   Appellant proceeds to challenge the credibility of Officer

Dunlap’s observations, viewing them in a light most favorable to him, and

making much of the fact that Officer Richardson ultimately determined the

motor vehicle accident had not been his fault. Id. at 14-18.

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       Upon our review of the record, we conclude the suppression court's

finding that police had probable cause to arrest Appellant is supported by the

record and that the totality of the circumstances, including Officer Dunlap's

observations viewed in the light of his experience, support its legal

conclusions.    Officer Dunlap initially approached Appellant to ascertain his

condition after a motor vehicle accident, at which time he discerned the odor

of alcoholic beverage on his person and observed behavior indicative of one

driving under the influence of alcohol.          Officer Dunlap confirmed his belief

upon performing the aforementioned field sobriety tests which provided him

with   probable     cause    subsequently      to   place   Appellant   under   arrest.

Accordingly, Appellant's issue affords him no relief.6


____________________________________________


6
  Appellant filed with this Court a post-submission communication pursuant
to Pa.R.A.P. 2501(b) wherein he argues the United States Supreme Court’s
recent decision in Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed.2d
560 (filed June 23, 2016) is instructive herein. Therein, three cases were
consolidated for argument to determine whether a motorist may be deemed
to have consented to submit to a blood test on pain of committing a criminal
offense. The Supreme Court ultimately held that while no warrant is required
for a police officer to administer a field breathalyzer test to a suspected
drunk driver, either a search warrant or a recognized exception thereto is
necessary before blood may be drawn for the purpose of chemical testing.
However, the Birchfield Court reaffirmed the constitutionality of an officer’s
decision to administer field sobriety tests which, in turn, provide probable
cause for the officer to arrest the driver after he or she administers those
tests if he or she finds the driver has failed them. In the matter sub judice,
the basis of Appellant’s appeal is not that his consent to a blood test had
been coerced by a police officer’s warnings provided pursuant to Implied
Consent Law, but rather that Officer Dunlap lacked probable cause to arrest
him. In fact, Appellant acquiesced at the stipulated bench trial that based
(Footnote Continued Next Page)


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      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2016




                       _______________________
(Footnote Continued)

upon the test results, there was "[n]o argument as to his guilt. . . .” N.T.
Trial, 7/10/15, at 4.




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