J-S69043-18

                                   2018 PA Super 333

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VICTOR LEE COPENHAVER                      :
                                               :
                       Appellant               :   No. 383 MDA 2018

          Appeal from the Judgment of Sentence September 18, 2017
      In the Court of Common Pleas of Adams County Criminal Division at
                        No(s): CP-01-CR-0001070-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

OPINION BY MURRAY, J.:                              FILED DECEMBER 07, 2018

        Victor Lee Copenhaver (Appellant) appeals from the judgment of

sentence imposed after the trial court convicted him of two counts of driving

under the influence of alcohol and a controlled substance (DUI),1 possession

of a small amount of marijuana, and three summary offenses under the

Vehicle Code. Upon review, we affirm.

        On August 31, 2015, Adams County Deputy Sheriff Timothy Beall

initiated a traffic stop of Appellant’s vehicle because it had an expired

registration. The trial court provided the following summary:

              At trial, Sheriff Deputy Beall testified that after he stopped
        Appellant’s vehicle, he asked Appellant to produce his license,
        registration, and insurance information. Appellant flailed his
        hands in the air and stated that he didn’t have a license and was
        suspended. While speaking with Appellant, Sheriff Deputy Beall
        observed an odor of alcohol and marijuana emanating from the
        passenger compartment of the vehicle. Sheriff Beall noticed that
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1   75 Pa.C.S.A. §§ 3802(d)(2), (3).
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     Appellant had blood shot eyes and slurred speech. Sheriff Deputy
     Beall asked Appellant to exit the vehicle. Appellant complied and
     stated, “I have a bowl in my pocket.” Sheriff Deputy Beall took
     the smoking device out of Appellant’s pocket. In addition, Sheriff
     Deputy Beall recovered suspected marijuana from the glove box
     in Appellant’s vehicle. Sheriff Deputy Beall advised Appellant that
     he was going to conduct Standard Field Sobriety Tests (SFSTs)
     and then led Appellant to a flat, well-light[ed] area. Appellant
     showed signs of impairment and stated that he could not complete
     the SFSTs. For Appellant’s safety, Sheriff Deputy Beall concluded
     the SFSTs. Based on the totality of the circumstances, Sheriff
     Deputy Beall suspected that Appellant was under the influence of
     drugs, alcohol, or a combination of both. Sheriff Deputy Beall took
     Appellant into custody.

           On July 12, 2017, after a bench trial, this Court found
     Appellant guilty of Driving Under the Influence of a Controlled
     Substance, as an ungraded misdemeanor (Count 3); Driving
     Under the Influence of Alcohol and a Controlled Substance, as an
     ungraded misdemeanor (Count 4); Possession of a Small Amount
     of Marijuana, as an ungraded misdemeanor (Count 5);
     Registration/Certification of Title, as a summary offense (Count
     7); Driving Without a License, as a summary offense (Count 8);
     and Unauthorized Transfer or Use of Registration, as a summary
     offense (Count 9). On September 18, 2017, Appellant was
     sentenced on Count 4 to seventy-two (72) hours to six (6) months
     partial confinement at the Adams County Adult Correctional
     Complex. The Sentencing Court sentenced Appellant to pay fines
     on Counts 5, 7, 8 and 9.

Trial Court Opinion, 11/20/17, at 1-3 (footnotes omitted).

     Appellant filed a post-sentence motion, one day late, on September 29,

2017. See Pa.R.Crim.P. 720 (“[A] written post-sentence motion shall be filed

no later than 10 days after imposition of sentence”). On October 17, 2017,

he filed an appeal in this Court at No. 1620 MDA 2017. On February 5, 2018,

this Court erroneously quashed the appeal on the basis that Appellant’s post-

sentence motion was timely and therefore pending before the trial court. See

Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en banc)

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(while timely post-sentence motion tolls the appeal period, an untimely post-

sentence motion does not). Appellant did not seek to reinstate his appeal at

No. 1620 MDA 2017. On February 26, 2018, Appellant filed the instant appeal.

Because Appellant’s untimely post-sentence motion did not toll the appeal

period, the appeal was untimely and this Court quashed it on June 4, 2018.

On June 25, 2018, Appellant filed an application for reconsideration of the

June 4, 2018 quashal. On June 28, 2018, this Court entered an order stating

that “a breakdown in the operations of this Court may have occurred.” Order,

6/28/18.    Thus, we vacated the June 4, 2018 order and reinstated the

underlying appeal. Id. Both Appellant and the trial court have complied with

Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Appellant presents three issues:

      1. Do sheriffs and their deputies possess the authority to stop a
      motorist for an expired registration sticker, a summary violation
      of the Motor Vehicle Code?

      2. Did the Commonwealth possess sufficient evidence to convict
      [Appellant] of DUI under both 75 Pa.C.S.[A. §] 3802(d)(2) and
      (d)(3)?

      3. Is the lower court’s verdict contrary to the weight of the
      evidence?

Appellant’s Brief at 5.

      Appellant first challenges the trial court’s denial of his suppression

motion. Our standard of review 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

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      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] 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. Mason, 130 A.3d 148, 151-52 (Pa. Super. 2015) (citation

omitted).   Additionally, “our scope of review from a suppression ruling is

limited to the evidentiary record that was created at the suppression hearing.”

Commonwealth v. Rapak, 138 A.3d 666, 670 (Pa. Super. 2016) (citing In

re L.J., 79 A.3d 1073, 1087 (Pa. 2013)).

      Appellant claims that “[he] was deprived of his Fourth Amendment and

Article I, Section 8 guarantees when the trial court failed to suppress evidence

that was obtained as the result of an illegal stop and search.” Appellant’s Brief

at 10.   Specifically, Appellant asserts that “the deputy sheriff lacked the

statutory or common law authority to detain Appellant for an expired

registration sticker seen on his vehicle.”    Id.   The essence of Appellant’s

argument is that “[s]heriffs possess no statutory authority to enforce the

Motor Vehicle Code, and the expired sticker does not amount to a ‘breach of

the   peace’   as understood at common law.”            Id.        Appellant   cites

Commonwealth         v.   Marconi,    64     A.3d   1036    (Pa.     2013),    and

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Commonwealth v. Leet, 641 A.2d 299 (Pa. 1994), to support his argument.

Upon review, we are not persuaded that he is entitled to relief.

      “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). Our Constitution establishes sheriffs as “[c]ounty

officers.” Pa. Const. Art. IX, § 4. However, while “the Constitution establishes

the office, it does not describe the duties of a sheriff.” Kopko v. Miller, 892

A.2d 766, 770 (Pa. 2006). “The General Assembly has limited the powers and

duties of sheriffs to those ‘authorized or imposed upon them by statute.’

Further, a sheriff is mandated to ‘serve process and execute orders directed

to him pursuant to the law.’” Id. (citing 13 P.S. § 40; 42 Pa.C.S.A. § 2921).

      Although “sheriffs and their deputies are not ‘police officers’ under the

Vehicle Code,” Marconi, 64 A.3d at 1041, in Leet, our Supreme Court held

“that the common law powers of the sheriff include the power to enforce the

motor vehicle code, and that such powers have not been abrogated by statute

or otherwise.” Leet, 641 A.2d at 301. The Supreme Court stated: “a sheriff

(and his deputies) may make arrests for motor vehicle violations which

amount to breaches of the peace committed in their presence,” where the

sheriff or deputy has “complete[d] the same type of training that is required

of police officers throughout the Commonwealth.” Id. at 303. Notably, the

Supreme Court in Leet did not identify violations which would amount to


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“breaches of the peace.” See Marconi, 64 A.3d at 1049 n.5 (“At the very

least, Leet should have considered the consequences of overlaying common-

law arrest powers for one category of peace officers, cabined only by an

undefined breach-of-the-peace litmus to determine arrest authority, over

such a more refined statutory scheme.”) (emphasis added).

      This Court, however, has considered whether driving while operating

privilege is suspended or revoked, a summary offense under 75 Pa.C.S.A. §

1543, amounted to “a ‘breach of the peace,’ as contemplated by our Supreme

Court in . . . Leet . . . .” Commonwealth v. Lockridge, 781 A.2d 168, 169

(Pa. Super. 2001), affirmed on other grounds, 810 A.2d 1191 (Pa. 2002).

In an argument analogous to the one before us, the defendant in Lockridge

argued that that the sheriff’s deputy who cited him for violating Section 1543

“was unauthorized to issue the citation in question because the traffic violation

of driving while his license was suspended did not amount to a ‘breach of the

peace[.]’” Id. at 170. In finding the defendant’s arguments “unconvincing

and his interpretation of the Leet decision faulty,” we opined:

      [The defendant’s] interpretation of Leet illogically limits the
      authority of a trained deputy to issuing citations for only those
      violations of the Vehicle Code that involve behavior or action
      similar to those actions prohibited under the disorderly conduct
      provision of the Crimes Code. Were we to interpret Leet as
      narrowly as [the defendant] suggests, a deputy would be
      prohibited from enforcing [S]ection 1543(b) of the Vehicle Code,
      even if violated in his presence, because the operation of a motor
      vehicle while under suspension does not necessarily involve, ‘on
      any part of the driver, any intent to cause public inconvenience,
      annoyance, or alarm, or recklessly create risks thereof.’ 18
      Pa.C.S.A. § 5503. Such an interpretation of Leet defies logic, and

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      we find [the defendant’s] ‘breach of the peace’ argument devoid
      of merit.

Id. at 169-70 (citation and footnote omitted).

      On appeal, the Supreme Court affirmed our decision, but did so on a

different basis. The Supreme Court emphasized that “[t]he power to arrest,

as Leet instructs us, emanates from the common law. The filing of a citation,

however, concerns a process that is among those set out in the Pennsylvania

Rules of Criminal Procedure for commencing a summary action.” Lockridge,

810 A.2d at 1194. Thus, the Supreme Court found that “Pa.R.Crim.P. 410

authorizes a deputy sheriff to file a citation for a Vehicle Code summary

violation based on information received from a witness,” and held that the

sheriff’s deputy “was authorized to file the Citation charging [the defendant]

with a 75 Pa.C.S. § 1543(b) violation.” Id. at 1196. The Supreme Court

stated:

      [T]he Superior Court was correct to distinguish Leet and apply
      the Rules [of Criminal Procedure] to determine whether [the
      deputy sheriff] had the authority to file the Citation. We also
      conclude that it was not necessary for the Superior Court to pass
      upon [the defendant’s] contention regarding a breach of the peace
      as discussed in Leet, for that aspect of Leet's discussion has no
      relevance to an analysis of law enforcement authority which is
      premised on the Rules.

Id. at 1195.

      Mindful of the foregoing, we turn to the suppression record in this case.

There was no testimony at the suppression hearing.           Rather, in lieu of

testimonial evidence, the parties stipulated to the following facts:



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            1. On August 31, 2015, Adams County Deputy Sheriff
       Timothy Beall conducted a vehicle stop of the vehicle operated by
       [Appellant], Victor Copenhaver;

             2. The vehicle stop occurred as a result of the deputy sheriff
       observing the tailgate to the pickup truck operated by the
       [Appellant] being in a down position. This caught his attention.
       He further observed that the registration on the pickup truck was
       expired, and additionally, the registration number was identified
       as belonging to a vehicle other than the one on which it was
       attached;

              3. Deputy Sheriff Beall has the equivalent training and
       qualifications to a Pennsylvania police officer as he has undergone
       the Act 120 waiver course and is a former Maryland police officer;

             4. At the time of the vehicle stop, the deputy sheriff was
       acting in the capacity as a deputy sheriff in Adams County;

           5. The vehicle stop of [Appellant’s] vehicle occurred within
       Adams County jurisdictional limits.

See Pre-Trial Order, 1/15/16, at 1.

       Per the stipulated record, Deputy Beall had the same training and

qualifications as a police officer in Pennsylvania, as he completed the “Act 120

waiver course” and was previously employed as a Maryland police officer. Id.

Deputy Beall conducted the stop of Appellant’s vehicle when he saw the

expired registration.      We note that while our Supreme Court in Marconi

intimated that not all Motor Vehicle Code violations amount to breaches of the

peace, it did not expand further, such that we have no express authority with

regard to Appellant’s violation of the Vehicle Code, 75 Pa.C.S.A. § 1301.2

____________________________________________


2   In Marconi, the Supreme Court stated:



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Although the Supreme Court affirmed our decision in Lockridge on other

grounds, and noted that “it was not necessary for the Superior Court to pass

upon [the defendant’s] contention regarding a breach of the peace,” we find

our analysis in that case to be instructive. In particular, we described the

defendant’s breach of the peace argument in Lockridge to be “unconvincing

and his interpretation of the Leet decision faulty.” Lockridge, 781 A.2d at

169. We opined that the defendant’s “interpretation of Leet illogically limits

the authority of a trained deputy to issuing citations for only those violations

of the Vehicle Code that involve behavior or action similar to those actions

prohibited under the disorderly conduct provision of the Crimes Code.” Id. at

170. We also stated unequivocally that the defendant’s “interpretation of Leet

defies logic” and found its “breach of the peace” argument to be “devoid of

merit.” Id. Given this guidance – where we determined that driving while


____________________________________________




       It has been suggested, in the Vehicle Code context, that all criminal
violations represent breaches of the peace, and, therefore, there is no need
to distinguish between sheriffs’ peacekeeping powers and Code enforcement
activities. This sort of oversimplification, however, does not provide the
necessary grounding for a reasoned judicial opinion. First, Vehicle Code
enforcement entails more than just arrests for criminal violations, as
exemplified by the present case concerning the establishment of checkpoints
to conduct suspicionless stops. Second, there are Vehicle Code violations
constituting summary offenses which do not readily comport with the
conception of a breach of the peace, for example, the failure to employ a seat
belt.

Marconi, 64 A.3d at 1049 n.6 (citations omitted).



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under suspension is a breach of the peace – we cannot say in Appellant’s case

that driving with an expired registration is not.       Accordingly, we are not

persuaded that Appellant’s first issue merits relief.

      In his next two issues, Appellant challenges the sufficiency and weight

of the evidence presented at trial.

      A claim challenging the sufficiency of the evidence is a question of
      law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. . . . When reviewing a sufficiency claim the court is
      required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003) (citations

omitted). “In conducting our review, we consider all of the evidence actually

admitted at trial and do not review a diminished record.” Id.

      With regard to a weight of the evidence claim:

      When the challenge to the weight of the evidence is predicated on
      the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is so
      unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not cognizable
      on appellate review. “Moreover, where the trial court has ruled
      on the weight claim below, an appellate court’s role is not to
      consider the underlying question of whether the verdict is against
      the weight of the evidence.” “Rather, appellate review is limited
      to whether the trial court palpably abused its discretion in ruling
      on the weight claim.”

Commonwealth v. Gibbs, 981 A.2d 281, 282 (Pa. Super. 2009) (citations

omitted). “[I]t is for the fact-finder to make credibility determinations, and

the finder of fact may believe all, part, or none of a witness’s testimony.” Id.

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(citation omitted).

      Upon review of Appellant’s sufficiency and weight claims, together with

the record and prevailing legal authority, we conclude that the Honorable

Thomas R. Campbell, sitting as the trial court and finder of fact, has authored

a comprehensive opinion addressing these issues. Accordingly, we adopt that

portion of Judge Campbell’s opinion as our own.        See Trial Court Opinion,

11/20/17, at 6-10 (finding credible the Commonwealth’s                direct and

circumstantial evidence that Appellant operated a vehicle with red eyes and

slurred speech; that odors of alcohol and marijuana emanated from

Appellant’s vehicle; that suspected marijuana and drug paraphernalia were

discovered inside Appellant’s vehicle; and Appellant exhibited signs of

impairment during the course of standardized field sobriety tests, leading the

trial court to conclude that the evidence was sufficient to support the

“necessary elements of the offenses, and prove beyond a reasonable doubt

that Appellant committed the offenses”).

      In sum, Appellant’s claims do not merit relief, and we therefore affirm

the judgment of sentence. Because we have partially adopted the trial court’s

opinion, we direct the parties to include it in any future filings relating to the

merits of this appeal.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/07/2018




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