J-S34013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN VINCENT KENNEDY

                            Appellant                  No. 1195 MDA 2015


              Appeal from the Judgment of Sentence June 5, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002901-2014


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                               FILED JUNE 28, 2016

        Appellant, John Vincent Kennedy, appeals from the judgment of

sentence entered June 5, 2015, in the Court of Common Pleas of Dauphin

County, following his conviction of Driving Under the Influence (“DUI”),

general impairment,1 and related charges. We affirm.

        The factual history of this case is well known to the parties, so we rely

upon the trial court’s recitation of facts as set forth in the trial court’s

opinion. See Trial Court Opinion, 11/23/15 at 2-6. Appellant was convicted

following a bench trial of DUI, general impairment, Driving on Roadways

Laned for Traffic, Careless Driving and Restriction on Alcoholic Beverages.

The trial court sentenced Appellant to not less than three days nor more

____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1).
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than six months’ incarceration, plus fines and costs. Appellant filed a timely

post-sentence motion arguing that the verdict was against the weight of the

evidence, which the trial court denied. This timely appeal followed.

      Appellant first argues that the trial court erred when it denied his

pretrial suppression motion.

             Our standard of review in addressing a challenge to a
         trial court's denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

            [W]e may consider only the evidence of the prosecution
         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 record supports the findings of the
         suppression court, we are bound by those facts and may
         reverse only if the court erred in reaching its legal
         conclusions based upon the facts.

            Further, [i]t is within the suppression court’s sole
         province as factfinder to pass on the credibility of
         witnesses and the weight to be given their testimony.

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal

citations and quotations omitted).

      Appellant argues that the arresting officer did not possess the requisite

reasonable suspicion or probable cause that a violation of the Motor Vehicle

Code had occurred in order to stop Appellant’s vehicle. The quantum of proof

necessary to effectuate vehicle stop on suspicion of a violation of the motor

vehicle code is governed by 75 Pa.C.S.A. § 6308(b), which states:

      (b) Authority of police officer.—Whenever a police officer is
      engaged in a systematic program of checking vehicles or drivers


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      or has reasonable suspicion that a violation of this title is
      occurring or has occurred, he may stop a vehicle, upon request
      or signal, for the purpose of checking the vehicle's registration,
      proof of financial responsibility, vehicle identification number or
      engine number or the driver's license, or to secure such other
      information as the officer may reasonably believe to be
      necessary to enforce the provisions of this title.

      Section 6308(b) establishes that reasonable suspicion is required to

effectuate a traffic stop based on suspicion of criminal activity or a suspected

violation of the Motor Vehicle Code requiring additional investigation. See

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en

banc).

      In deciding whether reasonable suspicion exists for an
      investigatory stop, our analysis is the same under both Article I,
      § 8 and the Fourth Amendment.

      The fundamental inquiry is an objective one, namely, whether
      “the facts available to the officer at the moment of the
      [intrusion] ‘warrant a man of reasonable caution in the belief’
      that the action taken was appropriate.” This assessment, like
      that applicable to the determination of probable cause, requires
      an evaluation of the totality of the circumstances, with a lesser
      showing needed to demonstrate reasonable suspicion in terms of
      both quantity or content and reliability.

Commonwealth v. Leonard, 951 A.2d 393, 396 (Pa. Super. 2008)

(citations omitted).

      “When the underlying source of the officer’s information is an

anonymous call, the tip should be treated with particular suspicion.”

Commonwealth v. Washington, 63 A.3d 797, 803 (Pa. Super. 2013)

(citation omitted). “However, a tip from an informer known to the police may

carry enough indicia or reliability for the police to conduct an investigatory


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stop, even though the same tip from an anonymous informant would likely

not have done so.” Id. (citation omitted).

       At the suppression hearing, Pennsylvania State Police Trooper William

Sheakley testified that he was dispatched to investigate a call received

regarding an erratic driver at approximately 8:30 p.m. on April 2, 2014. See

N.T., Suppression Hearing, 3/10/15 at 8-9. The caller, who identified herself

to police, indicated that the individual was driving a blue Ford Bronco

northbound on Route 209 between two named roads and provided the

vehicle’s registration number. See id. at 9. The caller indicated that the

driver of the Bronco was driving “all over the road, possibly intoxicated.” Id.

at 10. When Trooper Sheakley located the vehicle, he verified that the

registration number was the same                 the caller had   provided to   the

dispatchers, and discovered that the vehicle was registered to the Appellant.

See id. While following the vehicle, Trooper Sheakley observed the Bronco

cross the fog line. See id. Based upon the caller’s report of erratic driving

and his own observations of the vehicle crossing the fog line, Trooper

Sheakley proceeded to initiate a traffic stop on suspicion of a DUI. See id. at

11.

       We find Trooper Sheakley had the requisite reasonable suspicion to

stop Appellant for suspected DUI.2 Trooper Sheakley was able to corroborate

____________________________________________


2
 The trial court affirmed the legality of the traffic stop based on Trooper
Sheakley’s observation that Appellant violated section 3309(1) of the Motor
(Footnote Continued Next Page)


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the description of Appellant’s Bronco and the vehicle registration number

provided by the caller. The known informant’s description of Appellant’s

erratic driving, combined with Trooper Sheakley’s own observations of the

vehicle crossing the fog line constituted specific and articulable facts that

Appellant   might          be   driving   under    the     influence,    such   that    further

investigation was required. Accordingly, as Trooper Sheakley had reasonable

suspicion to stop Appellant’s vehicle on suspicion of DUI, the trial court did

not err in denying Appellant’s motion to suppress evidence.3

             Appellant next argues that the trial court erred in denying his

post-sentence motion challenging his DUI conviction as contrary to the

weight of the evidence. A challenge to the weight of the evidence “concedes

that the evidence is sufficient to sustain the verdict, but seeks a new trial on

the ground that the evidence was so one-sided or so weighted in favor of

acquittal   that       a    guilty    verdict     shocks     one’s      sense   of     justice.”

                       _______________________
(Footnote Continued)

Vehicle Code, Roadways Laned for            Traffic, when his vehicle crossed the fog
line. Nevertheless, it is well settled      that an appellate court can affirm on any
basis. See In re Jacobs, 15 A.3d            509, n.1 (Pa. Super. 2011) (“[This Court
is] not bound by the rationale of            the trial court, and may affirm on any
basis.”).
3
  To the extent that Appellant cursorily argues that he was questioned by
Trooper Sheakley without being informed of his Miranda rights, we note
that this issue is not even identified in the Statement of Questions Involved
contained in Appellant’s brief. Issues that are not set forth in the statement
of questions presented or reasonably suggested thereby are deemed waived.
See Pa.R.A.P., Rule 2116(a).




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Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal

denied, 99 A.3d 925 (Pa. 2014) (citation omitted). A verdict is said to be

contrary to the evidence such that it shocks one’s sense of justice when “the

figure of Justice totters on her pedestal,” or when “the jury’s verdict, at the

time of its rendition, causes the trial judge to lose his breath, temporarily,

and causes him to almost fall from the bench, then it is truly shocking to the

judicial conscience.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.

Super. 2004) (citations omitted), aff’d, 595 Pa. 1, 938 A.2d 198 (2007).


      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 274, 282 (Pa. Super. 2009) (internal

quotes and citations omitted).

      In order to obtain a conviction pursuant to Section 3801(a)(1), the

Commonwealth must prove “the accused was driving, operating, or in actual

physical control of the movement of a vehicle during the time when he or

she was rendered incapable of safely doing so due to the consumption of

alcohol.” Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).




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       Appellant argues in his brief that the video recording of Trooper

Sheakley’s traffic stop did not support a finding that Appellant was incapable

of safely driving his vehicle. This argument wholly ignores the additional

evidence introduced by the Commonwealth.

       At trial, the Commonwealth presented the testimony of Marsha Hein,

the tipster who informed police of Appellant’s erratic driving. Hein testified

that on April 4, 2014, she observed a vehicle driving erratically on Route 209

and started to follow it. See N.T., Bench Trial, 4/20/15 at 6. Hein stated that

the vehicle was swerving and crossed both the double yellow line and the

white line on the shoulder. See id. at 7. She testified that the vehicle

swerved over the double yellow lines twice and the white fog line once as it

weaved over the road for approximately three to four minutes. See id. at 8.

Concerned that the driver was intoxicated or suffering a medical ailment, she

relayed her observations to police, along with a description of the vehicle,

the vehicle’s location and the vehicle’s registration number. See id. at 9.

       Trooper Sheakley testified that when he conducted the traffic stop, he

detected a strong odor of alcohol emanating from Appellant’s person and

vehicle. See N.T., Suppression Hearing, 3/10/15 at 12-13.4 He also

indicated that Appellant was moving slowly and swaying and, as a result,

Appellant failed to adequately perform the walk and turn field sobriety test.

____________________________________________


4
  The testimony adduced at the suppression hearing was incorporated into
the bench trial proceedings. N.T., Bench Trial, 4/20/15 at 4-5.



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See id. at 16-17. Based upon the testimony of both Hein and Trooper

Sheakley, we find that the verdict is supported by evidence of record and

does not—in any respect—shock one’s sense of justice. Thus, the trial court

did not abuse its discretion, and Appellant’s weight of the evidence claim

must fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2016




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