J-S34010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

LESLEY A. SCOTT

                         Appellant                   No. 1621 MDA 2015


          Appeal from the Judgment of Sentence August 19, 2015
             In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0001428-2014


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

MEMORANDUM BY PANELLA, J.                             FILED JUNE 22, 2016

      Appellant, Lesley A. Scott, appeals from the judgment of sentence

entered August 19, 2015, in the Court of Common Pleas of Franklin County,

following her conviction of Driving Under the Influence (“DUI”), General

Impairment, under 75 Pa.C.S.A. § 3802(a)(1). No relief is due.

      On July 4, 2014, Pennsylvania State Troopers Jeremy Holderbaum and

Antoine Cox were on routine patrol in Franklin County when they observed a

vehicle turn off exit 24 on Interstate 81. See N.T., Suppression Hearing and

Bench Trial, 6/3/15 at 22. After turning off the exit, the vehicle failed to

discontinue its left turn signal for approximately three-quarters of a mile and

proceeded to pull into a Pacific Pride gas station that only services

commercial fleets. See id. at 22-23. When the Troopers pulled into the gas

station to see whether the driver needed assistance, they observed the
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Appellant exit the driver’s side door of the vehicle. See id. at 24. As Trooper

Cox approached the Appellant, he observed that her eyes were bloodshot

and glassy and he detected a strong odor of alcohol emanating from her

breath and person. See id. at 25.

      When he asked Appellant whether she had recently consumed any

alcohol, she replied that she had two shots of whisky approximately one

hour prior. See id. Trooper Cox next instructed Appellant to perform field

sobriety tests, and concluded on the basis of Appellant’s performance that

she was under the influence of alcohol. See id. at 26-29. Trooper Cox

thereafter administered a breathalyzer test, the results of which indicated

that Appellant’s blood alcohol content was above the legal limit. See id. at

30-31. Based on his observations of Appellant, Appellant’s admission to

having recently consumed alcohol, Appellant’s failure to adequately perform

field sobriety tests, and the breathalyzer result, Trooper Cox concluded that

Appellant was not capable of safely driving her vehicle. See id. at 31.

      Before Trooper Cox had placed Appellant under arrest, Trooper

Holderbaum informed him that there was an outstanding warrant for

Appellant’s arrest on a separate matter. See id. at 17-18; 31. After

Appellant was arrested and placed in the rear of the police car, she became

visibly irate and insisted that the Troopers shoot her. See id. at 13.

Appellant was subsequently transported to Chambersburg Hospital, where

she refused to submit to blood alcohol testing. See id. at 33.




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      Appellant was charged with DUI and related charges. Appellant moved

to suppress evidence of her intoxication. Following a combined suppression

hearing and bench trial, the trial court denied Appellant’s motion and

convicted Appellant of DUI, general impairment. The trial court sentenced

Appellant to six months’ incarceration. This timely appeal followed.

      Appellant raises the following issues for our review:

      I.      Whether the trial court erred in denying [Appellant’s]
              motion to suppress evidence by holding that she was
              subjected to a lawful arrest for DUI when (a) the trooper’s
              dash-cam video clearly showed that she successfully
              completed the field sobriety tests and there was no reason
              to suspect that she was under the influence and (b) there
              was no evidence of any erratic or unsafe driving?

      II.     Whether the trial court erred in concluding that the
              Commonwealth had presented sufficient evidence at trial
              to prove beyond a reasonable doubt that [Appellant] had
              consumed alcohol to the point that she was incapable of
              safely driving when (a) she clearly passed the field
              sobriety tests as shown by the trooper’s dash-cam video
              and (b) there was no evidence of any erratic or unsafe
              driving?

Appellant’s Brief at 6.

      We review the denial of a motion to suppress physical evidence as

follows:

            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


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          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, 445 (Pa. Super. 2014) (internal

citations and quotations omitted).

       Appellant primarily argues that Trooper Cox did not have probable

cause to arrest her under suspicion of DUI – general impairment.1 “Probable

cause exists where the officer has knowledge of sufficient facts and

circumstances to warrant a prudent person to believe that the driver has

been driving under the influence of alcohol or a controlled substance.”

Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa. Super. 2008). Here,

Trooper Cox observed that Appellant had glassy, bloodshot eyes and he

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

Appellant admitted that she consumed alcohol prior to driving and failed field

sobriety tests. A breathalyzer test administered prior to Appellant’s arrest

revealed a blood alcohol content of .10, which was well above the legal limit.

See N.T., Suppression Hearing and Bench Trial, 6/3/15 at 31. We do not

hesitate to conclude that these circumstances warranted the Trooper’s belief
____________________________________________


1
  Notably, Appellant does not contest the legality of the Trooper’s initial
traffic stop. We also note that although Appellant contested the admission of
her refusal to submit to chemical testing in her Rule 1925(b) statement, she
has not pursued this argument on appeal.



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that Appellant had been driving under the influence of alcohol. See Hilliar,

supra (finding officers had probable cause to arrest Appellant under

suspicion of DUI where officers detected a strong odor of alcohol, Appellant

slurred   his   speech,   and    became      verbally   combative).    See    also

Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006)

(probable cause to arrest for DUI existed where Appellant smelled of alcohol,

had bloodshot eyes, and failed field sobriety tests).

      Appellant argues that Trooper Cox’s testimony that she failed the field

sobriety tests is contradicted by the video recording from the Trooper’s

dash-cam video. She maintains that the video shows that she stood perfectly

still without swaying and that her speech was clear and not slurred. See

Appellant’s Brief at 21. Our review of the record reveals no inconsistencies in

Trooper Cox’s testimony. Although Trooper Cox conceded that Appellant

performed fairly well on the one leg stand test, he testified that, based upon

his training and experience, Appellant exhibited signs of intoxication during

the horizontal gaze nystagmus test and the walk and turn test. See N.T.,

Suppression Hearing and Bench Trial, 6/3/15 at 26-29. The trial court

credited Trooper Cox’s testimony. See Trial Court Opinion, 11/5/15 at 10.

“It is well established that our Court will not reverse a trial court’s credibility

determination absent the court's abuse of discretion as fact finder.”

Hughes, supra, at 928. Appellant’s argument in this regard is therefore

unavailing.




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      Accordingly, as there existed probable cause to arrest Appellant under

suspicion of driving under the influence of alcohol, we find the trial court’s

denial of Appellant’s suppression motion was without error.

      Appellant next challenges the sufficiency of the evidence in support of

her conviction of DUI – general impairment. We review a challenge to the

sufficiency of the evidence as follows:

      The standard we apply when reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the trier of fact while
      passing upon the credibility of witnesses and the weight of the
      evidence produced is free to believe all, part or none of the
      evidence. Furthermore, when reviewing a sufficiency claim, our
      Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

      However, the inferences must flow from facts and circumstances
      proven in the record, and must be of such volume and quality as
      to overcome the presumption of innocence and satisfy the jury
      of an accused’s guilt beyond a reasonable doubt. The trier of fact
      cannot base a conviction on conjecture and speculation and a
      verdict which is premised on suspicion will fail even under the
      limited scrutiny of appellate review.




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Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      Appellant was convicted of DUI – general impairment, pursuant to

subsection 3802(a)(1) of the Vehicle Code, which provides as follows:

      (a) General impairment.—

      (1) An individual may not drive, operate or be in actual physical
      control of the movement of a vehicle after imbibing a sufficient
      amount of alcohol such that the individual is rendered incapable
      of safely driving, operating or being in actual physical control of
      the movement of the vehicle.

“[S]ubsection 3802(a)(1) is an ‘at the time of driving’ offense, requiring that

the Commonwealth prove the following elements: 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).

      Appellant concedes that she was driving, operating or in actual

physical control of the movement of a vehicle. She contends, however, that

the evidence was insufficient to establish that she was incapable of safely

driving due to the consumption of alcohol. See Appellant’s Brief at 23-26.

In Segida, the Pennsylvania Supreme Court described the types of evidence

that the Commonwealth may offer to prove this element:

      Section 3802(a)(1), like its predecessor [statute], is a general
      provision and provides no specific restraint upon the
      Commonwealth in the manner in which it may prove that an
      accused operated a vehicle under the influence of alcohol to a
      degree which rendered him incapable of safe driving.... The

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      types of evidence that the Commonwealth may proffer in a
      subsection 3802(a)(1) prosecution include but are not limited to,
      the following: the offender's actions and behavior, including
      manner of driving and ability to pass field sobriety tests;
      demeanor, including toward the investigating officer; physical
      appearance, particularly bloodshot eyes and other physical signs
      of intoxication; odor of alcohol, and slurred speech. Blood
      alcohol level may be added to this list, although it is not
      necessary and the two[-]hour time limit for measuring blood
      alcohol level does not apply. Blood alcohol level is admissible in
      a subsection 3801(a)(1) case only insofar as it is relevant to and
      probative of the accused's ability to drive safely at the time he or
      she was driving. The weight to be assigned these various types
      of evidence presents a question for the fact-finder, who may rely
      on his or her experience, common sense, and/or expert
      testimony. Regardless of the type of evidence that the
      Commonwealth proffers to support its case, the focus of
      subsection 3802(a)(1) remains on the inability of the individual
      to drive safely due to consumption of alcohol-not on a particular
      blood alcohol level.

Segida, 985 A.2d at 879.

      In support of her argument, Appellant reiterates her claim that the

dash-cam video belied Trooper Cox’s testimony that she failed the field

sobriety tests. She additionally maintains that there is no evidence that she

was driving erratically or that her speech was impaired. Despite Appellant’s

attempt to portray the evidence in a light favorable to her defense, we note

that our relevant inquiry in conducting a sufficiency analysis requires that we

view the evidence in the light most favorable to the verdict winner—in this

case, the Commonwealth.

      When viewed in this light, we find that the evidence presented at trial

was sufficient to enable the factfinder to conclude that Appellant was

incapable of safely driving her vehicle due to the consumption of alcohol. As



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noted, Trooper Cox observed that Appellant had glassy, bloodshot eyes and

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

Appellant admitted that she consumed alcohol prior to driving and failed field

sobriety tests. A breathalyzer test administered prior to Appellant’s arrest

revealed a blood alcohol content of .10. Trooper Cox’s observations of

Appellant led him to believe that she was intoxicated.

      “Evidence that the driver was not in control of himself, such as failing

to pass a field sobriety test, may establish that the driver was under the

influence of alcohol to a degree which rendered him incapable of safe

driving, notwithstanding the absence of evidence of erratic or unsafe

driving.” Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. 2003)

(citation omitted). See also Commonwealth v. Salter, 121 A.3d 987, 995

(Pa. Super. 2015) (“Erratic driving is not a super-factor, much less one

determinative of DUI.”). Despite the lack of other positive indicators of

intoxication such as slurred speech or erratic driving, we find that Appellant’s

failure of the field sobriety tests, combined with Appellant’s bloodshot eyes

and the odor of alcohol on her person, was sufficient to establish she was

incapable of safe driving due to the consumption of alcohol. Thus, the

evidence was more than sufficient to support Appellant’s conviction of

subsection 3802(a)(1).

      Judgment of sentence affirmed.




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     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




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