J-A33003-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                 Appellee                 :
                                          :
       v.                                 :
                                          :
RONALD CARL ENYEART,                      :
                                          :
                 Appellant                :   No. 90 WDA 2016

          Appeal from the Judgment of Sentence December 18, 2015
              In the Court of Common Pleas of Clearfield County
             Criminal Division at No(s): CP-17-CR-0000212-2015

BEFORE:     LAZARUS, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED JULY 19, 2017

      Ronald Carl Enyeart (Appellant) appeals from the judgment of

sentence entered following his conviction for driving under the influence of a

controlled substance (DUI). We affirm.

      At approximately 9:20 p.m. on January 17, 2015, Pennsylvania State

Trooper Michael Gregory Meko was following Appellant’s vehicle while

traveling on State    Route   830 in Clearfield County. After       observing

Appellant’s vehicle “swerving on the roadway,” “straddling” the yellow center

turning lane, and crossing the fog line, Trooper Meko activated his mobile

video recorder (MVR). N.T., 8/25/2015, at 4-5. The video shows about 30

seconds of footage of Appellant driving prior to signaling and making a left-

hand turn into a Sheetz convenience store. The video shows a “few

instances” of Appellant’s vehicle “nudging the center line,” and one instance



*Retired Senior Judge assigned to the Superior Court.
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where Appellant’s right tires cross the fog line on the right after negotiating

a curve in the road. Id. at 8.

        Appellant made a left-hand turn into the Sheetz parking lot and pulled

into a parking space. N.T., 11/5/2005, at 40. Trooper Meko followed him,

pulled up behind him, and activated the emergency lights in his unmarked

vehicle. Id. Trooper Meko approached Appellant and, according to his

preliminary hearing testimony, he noticed the odor “of an adult alcoholic

beverage, and marijuana[.]” N.T., 3/20/2015, at 6. Trooper Meko ordered

Appellant out of the vehicle to perform field sobriety tests, which Appellant

failed. Appellant was placed under arrest and transported to Penn Highlands

Hospital. There, Trooper Meko gave Appellant O’Connell1 warnings and read



1
    We have explained:

        The    O’Connell     warnings   were    first  announced   in
        Commonwealth, Department of Transportation, Bureau of
        Traffic Safety v. O’Connell, 555 A.2d 873 (Pa. 1989). In a
        later opinion, our Supreme Court explained both the O’Connell
        warnings and the reasoning behind the warnings:

             In order to guarantee that a motorist makes a
             knowing and conscious decision on whether to
             submit to testing or refuse and accept the
             consequence of losing his driving privileges, the
             police must advise the motorist that in making this
             decision, he does not have the right to speak with
             counsel, or anyone else, before submitting to
             chemical testing, and further, if the motorist
             exercises his right to remain silent as a basis for
             refusing to submit to testing, it will be considered a
             refusal and he will suffer the loss of his driving


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Appellant the DL-26 form (chemical testing warnings), which includes

Pennsylvania’s implied consent laws2 and a statement that the operator



           privileges[. T]he duty of the officer to provide the
           O’Connell warnings as described herein is triggered
           by the officer’s request that the motorist submit to
           chemical sobriety testing, whether or not the
           motorist has first been advised of his Miranda
           rights.

     Commonwealth, Dep’t of Transp., Bureau                of   Driver
     Licensing v. Scott, 684 A.2d 539, 545 (Pa. 1996).

Commonwealth v. Barr, 79 A.3d 668, 670 n.4 (Pa. Super. 2013).
2
  75 Pa.C.S. § 1547(b)(2) sets forth the implied consent warnings. The
subsection states:

     It shall be the duty of the police officer to inform the person
     that:

     (i) the person’s operating privilege will be suspended upon
     refusal to submit to chemical testing; and (ii) if the person
     refuses to submit to chemical testing, upon conviction or plea for
     violating section 3802(a)(1) [(concerning DUI, general
     impairment) ], the person will be subject to the penalties
     provided in section 3804(c) (relating to penalties).

75 Pa.C.S. § 1547(b)(2). In particular, the warning on the DL-26 form
states:

     If you refuse to submit to the chemical test, your operating
     privilege will be suspended for at least 12 months. If you
     previously refused a chemical test or were previously convicted
     of driving under the influence, you will be suspended for up to
     18 months. In addition, if you refuse to submit to the chemical
     test, and you are convicted of violating Section 3802(a)(1)
     (relating to impaired driving) of the Vehicle Code, then, because
     of your refusal, you will be subject to more severe penalties set
     forth in Section 3804(c) (relating to penalties) of the Vehicle


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could face increased criminal penalties for refusing a blood draw. See N.T.,

11/5/2015, at 51. Appellant consented to a blood draw, which showed the

presence of marijuana, a Schedule I controlled substance, and a blood

alcohol content (BAC) of .082. N.T., 11/5/2015, at 92. As a result, Appellant

was charged with DUI, as well as one count of DUI - general impairment.

      Appellant filed a motion to suppress, which was denied following a

hearing,   and   the   matter   proceeded   to     a   jury   trial.   At   trial,   the

Commonwealth presented forensic toxicologist Ayako Chan-Hosokawa, who

testified, inter alia, that the margin of error in the BAC testing was between

six and seven percent. N.T., 11/5/2015, at 101. At the close of the

Commonwealth’s case, the court granted Appellant’s motion for judgment of

acquittal on the charge of DUI - general impairment.

      In his trial testimony, Appellant admitted he had smoked marijuana

earlier that day. Thus, the jury convicted Appellant of the remaining count

of DUI. The trial court found Appellant not guilty of the summary offenses of

careless driving and roadways laned for traffic.




      Code. These are the same penalties that would be imposed if
      you were convicted of driving with the highest rate of alcohol,
      which includes a minimum of 72 consecutive hours in jail and a
      minimum fine of $1000.00, up to a maximum of five years in jail
      and a maximum fine of $10,000.

Pennsylvania Department of Transportation, Form DL-26 (3-12).


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      On December 18, 2015, the trial court sentenced Appellant to a term

of imprisonment of 90 days to one year and imposed a $1,500.00 fine. No

post-sentence motions were filed. On January 13, 2016, Appellant filed a

timely notice of appeal. Both Appellant and the trial court complied with the

mandates of Pa.R.A.P. 1925.

      Appellant raises two issues for our review:

      1. Did the trial court err when it denied Appellant’s motion to
      suppress where evidence of record does not demonstrate either
      reasonable suspicion or probable cause to stop the motor vehicle
      that Appellant was operating?

      2. Does the holding in Birchfield [v. North Dakota, 136 S. Ct.
      2160 (2016)] require suppression of Appellant’s chemical test
      results where the request for a blood draw was not supported by
      probable cause?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      When reviewing an order denying a defendant’s motion to suppress,

we must determine “whether the record supports the trial court’s factual

findings and whether the legal conclusions drawn therefrom are free from

error.” Commonwealth v. McClease, 750 A.2d 320, 323 (Pa. Super.

2000). In so doing, we 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.” Commonwealth v.

Maxon, 798 A.2d 761, 765 (Pa. Super. 2002). “Where the record supports

the findings of the suppression court, we are bound by those facts and may




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reverse only if the court erred in reaching its legal conclusions based upon

the facts.” McClease, 750 A.2d at 323–24.

      [w]hen considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered. If it is not necessary
      to stop the vehicle to establish that a violation of the Vehicle
      Code has occurred, an officer must possess probable cause to
      stop the vehicle. Where a violation is suspected, but a stop is
      necessary to further investigate whether a violation has
      occurred, an officer need only possess reasonable suspicion to
      make the stop. Illustrative of these two standards are stops for
      speeding and DUI. If a vehicle is stopped for speeding, the
      officer must possess probable cause to stop the vehicle. This is
      so because when a vehicle is stopped, nothing more can be
      determined as to the speed of the vehicle when it was observed
      while traveling upon a highway. On the other hand, if an officer
      possesses sufficient knowledge based upon behavior suggestive
      of DUI, the officer may stop the vehicle upon reasonable
      suspicion of a Vehicle Code violation, since a stop would provide
      the officer the needed opportunity to investigate further if the
      driver was operating under the influence of alcohol or a
      controlled substance.

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).

      The trial court denied Appellant’s suppression motion, finding that

Trooper Meko had reasonable suspicion to believe that Appellant was driving

under the influence in violation of the vehicle code.     Trial Court Opinion,

4/13/2016, at 3-4. “The question of whether reasonable suspicion existed at

the time [the officer conducted the stop] must be answered by examining

the totality of the circumstances to determine whether the officer who

initiated the stop had a ‘particularized and objective basis’ for suspecting the

individual stopped.” Commonwealth v. Reppert, 814 A.2d 1196, 1203



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(Pa. Super. 2002). Therefore, the fundamental inquiry of a reviewing court

must be an objective one, “namely, whether ‘the facts available to the officer

at the moment of the [stop] warrant a man of reasonable caution in the

belief that the action taken was appropriate.’” Id. (quoting Commonwealth

v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000)).

      Here, Trooper Meko testified that he observed Appellant’s vehicle

swerving on the highway, straddling the yellow center turn lane, and

crossing the fog line, N.T., 8/25/2015, at 4, 8, 14-15, and these

observations prompted him to activate his vehicle’s dashcam recorder.

Although the video of the stop does not show the entirety of the observed

conduct, the court was free to believe Trooper Meko’s testimony. Therefore,

we are bound by the court’s factual finding, which is supported by the

record, that Trooper Meko had reasonable suspicion to believe that Appellant

was driving under the influence. Thus, we find no error in the court’s denial

of Appellant’s suppression motion.

      With respect to Appellant’s second issue, whether the holding in

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), requires suppression

of the results of Appellant’s blood draw, we are constrained to find waiver.

Although Birchfield and this Court’s interpretation of that decision in

Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016), raise a

question as to the voluntariness of Appellant’s consent to the warrantless




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blood draw, it is well established “that in order for a new rule of law to apply

retroactively to a case pending on direct appeal, the issue had to be

preserved at all stages of adjudication up to and including the direct

appeal.” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001)

(emphasis added; citations omitted). Appellant herein did not challenge the

voluntariness of his consent to the blood draw at any point before the trial

court. Accordingly, the claim is waived.

      Judgment of sentence affirmed.


      Judge Solano joins.


      Judge Lazarus files a dissenting memorandum.




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/19/2017




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