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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
BRUCE ALLEN BRANDY,                     :        No. 2041 WDA 2014
                                        :
                       Appellant        :


         Appeal from the Judgment of Sentence, August 25, 2014,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0014173-2013


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MAY 10, 2016

      Bruce Allen Brandy appeals the judgment of sentence in which the

Court of Common Pleas of Allegheny County sentenced him to serve 30 days

in the Intermediate Punishment Program with work, school, and medical

release eligibility for one count of DUI: High Rate of Alcohol, 75 Pa.C.S.A.

§ 3802(B); one count of DUI:       General Impairment/Incapable of Driving

Safely, 75 Pa.C.S.A. § 3802(A)(1); and one count of making an improper

right turn, 75 Pa.C.S.A. § 3331(a). The trial court also ordered appellant to

attend safe driver classes, undergo a drug and alcohol evaluation, and pay a

fine of $775.

      Officer John Kiefer (“Officer Kiefer”) of the Castle Shannon Borough

Police Department was on duty on May 12, 2013, and was parked in his

vehicle in a thrift store lot where he monitored the intersection of
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Grove Road and Route 88.         At approximately 1:00 a.m., Officer Kiefer

observed a black Cadillac CTS (“vehicle”) turn right from Grove Road onto

Route 88 to head south toward Bethel Park. (Notes of testimony, 7/17/14 at

7-9.)    Officer Kiefer also saw that the vehicle “made the turn extremely

wide. It actually ended up in the turn lane that travels northbound for Grove

Road. It’s a left turn only lane.” (Id. at 9.) According to Officer Kiefer, the

vehicle “traveled basically the whole length of the lane until it reached the

actual capping for the Hamilton turn lane.”    (Id. at 9.)   Officer Kiefer got

behind the vehicle and initiated a traffic stop.   Officer Kiefer noticed that

appellant had “glassy, bloodshot eyes.      He had [a] moderate odor of an

alcoholic beverage coming off of his breath as he spoke.      His speech was

very slurred. He was very abrasive as far as a personality goes.” (Id. at

11.) Appellant then failed the field sobriety tests Officer Kiefer asked him to

perform and was placed under arrest for DUI.       (Id. at 11-15.)   Appellant

was transported to St. Clair Hospital where a phlebotomist administered a

blood alcohol test.    Appellant’s blood alcohol content was revealed to be

0.145%. (Id. at 79-80.)

        Appellant was charged with the three crimes for which he was

convicted as well as failure to keep right, 75 Pa.C.S.A. § 3301(a), which was

later withdrawn.

        On March 4, 2014, appellant filed a motion to suppress on the basis of

an illegal search. On July 17, 2014, the trial court heard the motion.



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Officer Kiefer recounted the circumstances which led him to arrest appellant.

Marshall Thomas Globicki (“Globicki”), a private investigator, testified on

behalf of appellant. Globicki commented on the video from Officer Kiefer’s

dashboard camera which was played for the trial court. Globicki stated that

appellant’s vehicle turned “wide, but only for a short period of time” when he

made the turn onto Route 88.           (Notes of testimony, 7/17/14 at 32-33.)

Globicki explained that the curb came out into the roadway such that

appellant had to drive into the other lane to clear the curb.1         (Id. at 44.)

Globicki further explained:

              So his vehicle would have had to come out straight
              to avoid going up on the island. But then if you look
              at that tape, you’ll see instantaneously he turned
              back into his right lane, and you’ll even see Hamilton
              Road on his left. He’s already in the right lane. That
              is where the policeman said he was still in the
              turning lane. It’s very, very clear in that tape.

Id. at 44.

        Appellant’s counsel argued that the stop was not valid because

appellant was forced to drive outside his lane due to the protrusion of the

curb.     Appellant’s counsel argued that the vehicle did not travel into the

other lane, but if it did, it was only for a very short time to avoid the curb.

(Id.     at 66.)   The Commonwealth argued that what was important was

Officer Kiefer’s testimony that he observed the vehicle “make a right turn

into an opposing lane of travel and then continue up.” (Id. at 71-72.) The


1
    Globicki called the curb as an “island.” The trial court called it a “curb.”


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Commonwealth recounted Officer Kiefer’s observations of appellant when he

made the traffic stop and appellant’s failed field sobriety tests which led to

his arrest. The Commonwealth did not believe that the curb required travel

into the next lane when making the turn. (Id. at 72-73.)

      The trial court found Officer Kiefer credible and denied the motion to

suppress. (Id. at 76-77.) The Commonwealth incorporated Officer Kiefer’s

testimony into the merits of the case except for the results of certain of the

testing. Following a non-jury trial, the trial court found appellant guilty of

the three charges and imposed the sentence described above.

      On October 30, 2014, appellant filed for post-trial relief and moved for

a new trial because the verdict was against the weight of the evidence and

moved for reconsideration of the denial of the suppression motion.

Appellant alleged that insufficient weight was given to the traffic video and

too much was given to Officer Kiefer’s testimony.     Regarding suppression,

appellant alleged that there was no basis for the traffic stop because

appellant did not commit the alleged infraction.      As a result, appellant

asserted that all evidence obtained after the traffic stop should have been

suppressed and was inadmissible.

      By order dated November 7, 2014, the trial court denied the motions.

With respect to reconsideration of the denial of the motion to suppress, the

trial court reasoned:

            The testimony of Officer Kiefer established that the
            [appellant’s] vehicle approached the intersection


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              where he made a right turn at a red signal without
              coming to a complete stop.           The [appellant]
              executed a very wide turn south bound which placed
              his vehicle in the north bound lane of travel for some
              distance until that lane ended and the [appellant]
              was forced to re-enter the south bound lane of travel
              on Route 88. After consideration of the testimony,
              the exhibits entered as evidence and having
              assessed the credibility of the witnesses, this court
              found that the officer had probable cause to stop and
              cite the defendant for violation of the motor vehicle
              code. Consequently, this Court denied the Motion to
              Suppress.

Trial court opinion, 9/24/15 at 6 (footnote omitted).

      With respect to the motion for a new trial because the verdict was

against the weight of the evidence, the trial court determined:

              This court considered all of the evidence presented
              at trial in reaching the verdict in this case. The
              [appellant] was stopped for violation of the motor
              vehicle code and exhibited the classic signs of
              impairment. The results of field sobriety testing and
              observations of the [appellant] led the officer to
              conclude that he was under the influence of alcohol
              and incapable of safe driving. That was confirmed
              by the [appellant’s] BAC [blood alcohol content] of
              .145%.

Id. at 7-8.

      Appellant raises the following issues for this court’s review:

              I.    Did the Trial Court err as a matter of law in
                    denying the Post Trial Motion for a New Trial
                    due to the Verdict being against the Weight of
                    the Evidence?

                    A.    Did the Trial Court err by not
                          giving enough weigh [sic] to the
                          traffic video and by giving too



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                          much weight to the          arresting
                          officer’s testimony?

                   B.     Did the Trial Court err by not
                          granting the Defendant/Appellant’s
                          Pre-Trial Motion?

            II.    Did the Trial Court err as a matter of law in
                   denying the Pre[-]Trial Motion to Suppress
                   Evidence, as well as by not granting a new
                   hearing on the suppression Motion?

                   A.     Did the Trial Court err in
                          determining the traffic infraction
                          was   justifiable  despite   video
                          evidence to the contrary, evidence
                          making    traffic stop    evidence
                          inadmissible?

Appellant’s brief at 2.

      Initially, appellant contends that the verdict was against the weight of

the evidence and a new trial should have been granted because the verdict

was so contrary to one’s sense of justice as to shock the conscience.

                   [T]he weight of the evidence is
                   exclusively for the finder of fact who is
                   free to believe all, part, or none of the
                   evidence and to determine the credibility
                   of the witnesses.       An appellate court
                   cannot substitute its judgment for that of
                   the finder of fact . . . thus, we may only
                   reverse the lower court’s verdict if it is so
                   contrary to the evidence as to shock
                   one’s sense of justice. 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



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                     trial court palpably abused its discretion
                     in ruling on the weight claim.

              Commonwealth v. Kim, 888 A.2d 847, 851
              (Pa.Super. 2005) (citations and quotations omitted).
              A motion for a new trial based on a challenge to the
              weight of the evidence concedes the evidence was
              sufficient to support the verdict. Commonwealth v.
              Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

        Appellant argues that the trial court erred when it failed to grant him a

new trial because the evidence was so lacking in this case as to shock the

conscience. According to appellant, entirely too much weight was given by

the jury2 to the testimony of Officer Kiefer while the video evidence was

largely ignored. Appellant asserts that the video evidence was unbiased and

showed that Officer Kiefer’s recollections were incorrect.        Appellant argues

that the video and Globicki contradicted Officer Kiefer’s stated justification

for the traffic stop: that appellant made too wide a turn when turning onto

Route 88 in violation of Section 3301 of the Vehicle Code, 75 Pa.C.S.A.

§ 3301 (driving on right side of roadway), and Section 3331(a) of the

Vehicle Code, 75 Pa.C.S.A. § 3331(a) (required position and method of

turning).

        Appellant argues that Globicki’s testimony as well as the video

evidence contradicts Officer Kiefer’s stated justification for the traffic stop

and renders the traffic stop improper.        Appellant ignores the fact that the


2
    Actually, the trial court conducted a non-jury trial.


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trial court, as the fact-finder, found Officer Kiefer credible. The trial court

heard the testimony of Officer Kiefer and Globicki and viewed the dashcam

video.   The trial court was familiar with the intersection from its own

experience.    The trial court believed Officer Kiefer’s version of the events

that appellant’s vehicle left the appropriate right lane when it turned onto

Route 88 from Grove Road.       The trial court did not believe that Globicki’s

description of the video and of the intersection as well as the video itself

discredited Officer Kiefer’s testimony. Essentially, appellant would like this

court to reweigh the evidence in his favor. That is not the appellate court’s

function. See Kim, 888 A.2d at 851. Based on the record before this court,

we do not believe that the trial court abused its discretion when it declined

to grant the motion for a new trial as the verdict does not shock one’s sense

of justice.3

      Next, appellant contends that the trial court erred as a matter of law

when it denied his motion to suppress evidence and his post-trial

reconsideration of the denial of the motion to suppress evidence. Appellant

asserts that the trial court erred when it determined that the traffic stop was

justifiable even though the video evidence was to the contrary.


3
  Interestingly, appellant does not challenge Officer Kiefer’s description of his
encounter with appellant where appellant exhibited slurred speech, glassy
eyes, and smelled of alcohol. He also does not challenge Officer Kiefer’s
testimony that his performance on the field sobriety tests led Officer Kiefer
to place him under arrest or that the subsequent blood test revealed a blood
alcohol content of 0.145%. The trial court listed these facts as reasons for
the guilty verdict in its opinion.


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                   Initially, we note that our standard of review
            when an appellant appeals the denial of a
            suppression motion is well established.       We are
            limited to determining whether the lower court’s
            factual findings are supported by the record and
            whether the legal conclusions drawn therefrom are
            correct.     We may consider the evidence of the
            witnesses offered by the Commonwealth, as verdict
            winner, and only so much of the evidence presented
            by [the] defense that is not contradicted when
            examined in the context of the record as a whole.
            We are bound by facts supported by the record and
            may reverse only if the legal conclusions reached by
            the court were erroneous.        Commonwealth v.
            O’Black, 897 A.2d 1234, 1240 (Pa.Super. 2006),
            citing Commonwealth v. Scott, 878 A.2d 874, 877
            (Pa.Super. 2005), appeal denied, 586 Pa. 749, 892
            A.2d 823 (2005).

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006). “It is

within the sole province of the suppression court judge to weigh the

credibility of the witnesses, and he or she is entitled to believe all, part, or

none of the evidence presented.” Commonwealth v. Snell, 811 A.2d 581,

584 (Pa.Super. 2002), appeal denied, 820 A.2d 162 (Pa. 2003) (citation

omitted).

      With respect to vehicle stops based on suspected violations of the

motor vehicle code, Section 6308(b) of the Vehicle Code provides:

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


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                      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.

75 Pa.C.S.A. § 6308(b).

      In Commonwealth v. Feczko, 10 A.3d 1285 (Pa.Super. 2010), this

court further explained the state of the law with respect to vehicle stops:

             Mere reasonable suspicion will not justify a vehicle
             stop when the driver’s detention cannot serve an
             investigatory purpose relevant to the suspected
             violation. In such an instance, “it is encumbent [sic]
             upon the officer to articulate specific facts possessed
             by him, at the time of the questioned stop, which
             would provide probable cause to believe that the
             vehicle or the driver was in violation of some
             provision of the Code.”         [Commonwealth v.]
             Gleason, 785 A.2d [983] at 989 [(Pa. 2001)].

Id. at 1291 (emphasis in original).

      Appellant acknowledges that Officer Kiefer testified that he made the

traffic stop based on Officer Kiefer’s belief that appellant made an extremely

wide right turn and traveled in an opposite lane until he moved back into the

proper lane. This testimony satisfies the requirements of Section 6308 and

Feczko in that Officer Kiefer had probable cause to stop the vehicle based

on his evaluation that at least one violation of the Vehicle Code had

occurred. Further, Officer Kiefer’s credible testimony supported the findings

of the trial court.

      Appellant asks this court to accept the testimony of Globicki and his

observations of the video and to reject the testimony of Officer Kiefer. This



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court    is   not   the   fact-finder   and   cannot   make   its   own   credibility

determinations. Snell, 811 A.2d at 584. Therefore, appellant’s argument

fails. Further, appellant admits that Globicki’s testimony clearly contradicts

Officer Kiefer’s. In Hughes, this court explained that, when reviewing the

denial of a suppression motion, we may consider the evidence of the

Commonwealth as verdict winner and only evidence from the appellant that

does not contradict the Commonwealth’s evidence.               Because Globicki’s

testimony contradicts that of Officer Kiefer with regard to whether

appellant’s vehicle stayed in the proper lane, this court may not consider it.

Hughes, 908 A.2d at 927.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2016




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