           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy Allen Parsons,                    :
                          Appellant       :
                                          :
             v.                           :   No. 874 C.D. 2016
                                          :   Submitted: January 6, 2017
Commonwealth of Pennsylvania,             :
Department of Transportation,             :
Bureau of Driver Licensing                :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                              FILED: March 17, 2017


             Appellant Timothy Allen Parsons (Licensee) appeals from an order of
the Court of Common Pleas of Washington County (trial court), dated
April 27, 2016.   The trial court denied Licensee’s appeal and sustained the
Department of Transportation’s (Department) 18-month suspension of his
operating privilege pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa.
C.S. § 1547(b), commonly referred to as Pennsylvania’s Implied Consent Law, for
his refusal to submit to chemical testing. For the reasons that follow, we affirm.
             On February 23, 2016, the Department mailed a letter to Licensee,
notifying him that his driving privileges would be suspended for a period of
eighteen months for failing to submit to chemical testing.1 Licensee appealed to
the trial court, which conducted a de novo hearing on April 27, 2016. At the
beginning of the hearing, Licensee averred that the trial court did not have
jurisdiction, seemingly on the basis that he was arrested without a warrant. The
trial court denied Licensee’s jurisdictional argument and then proceeded to hear
testimony.
                The arresting officer, Officer Dustin Devault, testified before the trial
court to the following facts. On January 22, 2016, he was at the Monongahela
7-Eleven, having proceeded there in his cruiser. (April 27, 2016 Hr’g Notes of
Testimony (N.T.) at 9). Officer Devault observed Licensee enter his vehicle and
leave the 7-Eleven. (Id.) He noticed Licensee turning without a turn signal, failing
to stop at a stop sign, driving at excessive speeds, and crossing the double yellow
center lines. (Id. at 9-10.) Officer Devault testified that after he pulled over
Licensee, Licensee twice exited his vehicle and walked toward Officer Devault’s
police vehicle. (Id. at 11-13.) Officer Devault further testified that both times


      1
          Section 1547(b) of the Code provides, in pertinent part:
                (b) Suspension for refusal.—
                        (1) If any person placed under arrest for a violation of [S]ection
                3802 [of the Code] is requested to submit to chemical testing and refuses
                to do so, the testing shall not be conducted but upon notice by the police
                officer, the department shall suspend the operating privilege of the person
                as follows:
                             (i) Except as set forth in subparagraph (ii), for a period of
                       12 months.
                               (ii) For a period of 18 months if any of the following apply:
                                      (A) The person’s operating privileges            have
                               previously been suspended under this subsection.



                                                 2
Licensee approached the police vehicle Licensee was swearing at Officer Devault.
(Id.) Officer Devault drew his weapon and began to handcuff Licensee, who
struggled and pushed the officer. (Id. at 13-14.) Officer Devault placed Licensee
in his police vehicle. (Id. at 15.) Licensee was argumentative and continued to
swear at him. (Id.) Officer Devault testified that Licensee’s eyes were bloodshot
and he smelled like alcohol. (Id.) Officer Devault arrested Licensee for driving
under the influence of alcohol and transported him to Monongahela Police Station,
where he refused to submit to a field sobriety test or chemical blood test. (Id. at
15-19.) Officer Devault transported Licensee to Monongahela Valley Hospital,
and again Licensee refused testing. (Id. at 19-20.)
             On cross-examination, when Licensee asked if Officer Devault was
sitting in the parking lot when Licensee entered the lot, Officer Devault responded
that he pulled into the lot at approximately the same time that Licensee did. (Id. at
24.) When asked if he was sitting in plain view when Licensee left, Officer
Devault responded that he was. (Id.) Licensee asked Officer Devault detailed
questions about almost every aspect of Officer Devault’s actions during the
relevant time period.    (Id. at 24-43.)       Licensee’s position, contesting Officer
Devault’s account of the events on January 22, 2016, is best summarized by this
question on cross-examination:
             Isn’t this true? I did not use the word [expletive] or
             [expletive] the whole time. I did not push you. You did
             not draw your weapon. I complied with all your orders.
             I utilized my turn signals. I stopped at the stop sign. I
             was not speeding. I did not cross into the other lane. My
             tires did not cross the double line. I did not swerve. You
             were not sitting in the 7-Eleven parking lot. You opened
             the door at the 7-Eleven for me. You were swiping your
             card when I exited the 7-Eleven parking lot. You’re
             purging [sic] yourself here today.

                                           3
(Id. at 43.)
                 Licensee testified on direct examination that he had a video from the
7-Eleven showing Officer Devault opening the door for Licensee, standing in line
behind Licensee, and swiping his credit card as Licensee was exiting the parking
lot. (Id. at 46.) Licensee testified that the video depicts Officer Devault at the
register and looking the opposite direction from Licensee as Licensee exited the
parking lot. (Id. at 50.) According to Licensee, the video demonstrates that
Officer Devault perjured himself when he wrote in his affidavit of probable cause
that he “had been sitting in the parking lot of the 7-Eleven when I observed a white
Ford Fiesta, failed to use his left-hand turn when entering Chess Street.”2 (Id.
at 43-52.) Licensee implied that, because Officer Devault allegedly lied in his
affidavit, Officer Devault’s testimony regarding the entire incident was untrue.
(Id. at 54-57.) Licensee testified that Licensee never used an expletive; Licensee
did not push Officer Devault; Officer Devault did not draw his weapon; Licensee
complied with all of Officer Devault’s orders; and Licensee utilized his turn
signals. (Id. at 57.)
                 Licensee eventually played the video in court, but he did not attempt
to introduce the video into evidence. (Id. at 58.) Licensee described the video as
showing Officer Devault in the store swiping his card while Licensee was backing
his car up and exiting, such that it would have been impossible for Officer Devault
to see the events to which he testified. (Id. 58-60.) The Department’s counsel
noted that, according to the time on the video, Officer Devault left the 7-Eleven
approximately one to one-and-one-half minutes before Officer Devault observed

       2
           It does not appear that Licensee offered the affidavit of probable cause into the record.



                                                   4
Licensee’s driving. (Id. at 59, 71.) The trial court noted that the video shows
Licensee’s vehicle moving away, but it does not depict what happened to his
vehicle upon entering the highway, so it was not contradictory. (Id. at 72.)
              Ultimately the trial court stated, “as far as credibility goes, I find that
the Commonwealth has sustained its burden of proof.” (Id. at 74.) The trial court
denied Licensee’s appeal and recommended that the Department delay
enforcement for two months to allow Licensee to appeal to this Court.                      (Id.
at 75-76.) This appeal followed.
               On appeal,3 Licensee argues that the trial court erred in two respects.
First, according to Licensee, the trial court failed to address Licensee’s claim that it
lacked jurisdiction.      Licensee continues to argue that the trial court lacked
jurisdiction and that it was the Department’s burden to establish jurisdiction.
According to Licensee, there are no facts of record that grant jurisdiction to the
trial court. Licensee also argues that the video from the 7-Eleven contradicts the
statements by Officer Devault. Licensee contends that the trial court suborned
perjury by crediting Officer Devault’s testimony.
              First, Licensee’s argument that the trial court lacked jurisdiction is
without merit. This Court explicitly held that, “the courts of common pleas have
jurisdiction over appeals from license suspensions and/or revocations.” Ladd v.
Dep’t of Transp., Bureau of Driver Licensing, 753 A.2d 318, 321 (Pa.



       3
         “This Court’s standard of review is limited to determining whether the trial court’s
findings are supported by competent evidence, whether errors of law have been committed or
whether the trial court’s determinations demonstrate a manifest abuse of discretion.” Kollar v.
Dep’t of Transp., Bureau of Driver Licensing, 7 A.3d 336, 339 n.1 (Pa. Cmwlth. 2010).



                                              5
Cmwlth. 2000); 42 Pa. C.S. § 933(a)(1)(ii). Accordingly, we reject Licensee’s
argument to the contrary.
             Next, we address Licensee’s contention that the trial court suborned
perjury. This Court’s standard of review in a statutory license suspension appeal
does not include consideration of allegations of perjury.        Rather, the Court
considers whether the findings of fact are supported by substantial evidence or
whether the trial court erred as a matter of law. In a driver’s license suspension
proceeding, the trial court is the fact finder and questions of credibility and
conflicts in the evidence are for the trial court to resolve. Schlata v. Dep’t of
Transp., Bureau of Driver Licensing, 744 A.2d 814, 816 (Pa. Cmwlth. 2000).
Even if Licensee attempted to contradict Officer Devault’s testimony, specifically
that he observed Licensee exit the parking lot without using his turn signal, with
Licensee’s contrary testimony and video evidence, it is the prerogative of the trial
court to resolve such a conflict. We are unable to reevaluate the credibility of
Officer Devault on review.
             Furthermore, we observe that when a licensee files a statutory appeal
from an order suspending his driving privileges based on failure to submit to
chemical testing, the Department must establish that (1) the police arrested the
licensee based upon reasonable grounds to believe that the licensee was operating a
motor vehicle while under the influence of alcohol; (2) the police asked the
licensee to submit to a chemical test; (3) the licensee refused to submit to testing;
and (4) the police warned the licensee that refusing to submit to testing would
result in license suspension.    Bomba v. Dep’t of Transp., Bureau of Driver
Licensing, 28 A.3d 946, 949 (Pa. Cmwlth. 2011). The only aspect of Officer
Devault’s testimony that the video potentially contradicted was that he observed


                                         6
Licensee fail to use his turn signal as he exited the 7-Eleven. Officer Devault
provided additional testimony that he observed Licensee driving at excessive
speeds and crossing the double yellow center lines and that Licensee’s eyes were
bloodshot and he smelled like alcohol. (N.T. at 9-10, 15.) This testimony is
sufficient to establish reasonable grounds to believe that Licensee was operating a
motor vehicle under the influence of alcohol. In light of that testimony, whether
Licensee used his turn signal when exiting the 7-Eleven would not affect the
outcome of this matter.
            Accordingly, we affirm the trial court’s order.




                               P. KEVIN BROBSON, Judge




                                        7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy Allen Parsons,                 :
                         Appellant     :
                                       :
           v.                          :   No. 874 C.D. 2016
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :



                                     ORDER


           AND NOW, this 17th day of March, 2017, the order of the Court of
Common Pleas of Washington County is AFFIRMED.




                              P. KEVIN BROBSON, Judge
