J-S56009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PATRICK EUGENE WRIGHT,

                            Appellant                 No. 338 MDA 2015


           Appeal from the Judgment of Sentence January 27, 2015
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0000709-2014


BEFORE: SHOGAN, JENKINS, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 06, 2015

       Appellant, Patrick Eugene Wright, appeals from the judgment of

sentence entered following his convictions of driving under the influence of

alcohol or controlled substance (“DUI”), and driving under suspension (DUI

related). We affirm.

       The trial court has summarized the facts of this case as follows:

             At approximately 10:45 P.M. on July 25, 2013, Lieutenant
       Steven Helm1 (Helm) of the Williamsport Bureau of Police was
       operating an unmarked police car on Fourth Street in
       Williamsport, Pennsylvania. Helm approached the intersection of
       Fourth Street and Campbell Street.         As he approached the
       intersection, Helm noticed that the traffic light was red. He saw
       the vehicle ahead of him brake at the traffic light.         Helm
       described the brake as sudden, as if the driver of the vehicle did
       not realize that the light was red. The vehicle stopped in the left
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*
    Retired Senior Judge assigned to the Superior Court.
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      lane of Fourth Street, and Helm stopped in the right lane. Helm
      noticed that half of the vehicle was over the white stop line.
      Helm testified that the vehicle was not in the crosswalk.
            1
                Helm has been a police officer for over 20 years.

             When the light turned green, the vehicle began to turn left
      onto Campbell Street.        According to Helm, the vehicle
      accelerated rapidly. He heard a slight “chirp” from the vehicle’s
      tires as it turned onto Campbell Street. Helm described the turn
      as wide. He testified that the vehicle nearly struck cars parked
      on Campbell Street. Helm testified that the cars were parked
      legally on Campbell Street.

            After the vehicle turned, Helm began to follow it. The
      vehicle was not speeding, and it did not swerve. The driver used
      a turn signal and turned left onto Park Avenue. Helm described
      the turn as sudden. He testified that the vehicle did not slow
      down much before the turn. After the turn onto Park Avenue,
      Helm stopped the vehicle. Helm identified the driver of the
      vehicle as [Appellant]. Helm eventually arrested [Appellant] on
      suspicion of driving after imbibing enough alcohol so that he
      could not safely operate a vehicle.2
            2
                75 Pa.C.S. § 3802(a).

Trial Court Opinion, 10/23/14, at 1-2. In addition, we note that testimony

from police officers indicated that Appellant failed two field sobriety tests.

Also, after Appellant was transported to Williamsport Hospital, he refused to

have his blood drawn for chemical testing.           On November 27, 2013,

Appellant was charged with the crimes stated above.

      On July 23, 2014, Appellant filed a motion to suppress all evidence and

statements obtained as a result of the vehicle stop. The trial court held a

hearing on Appellant’s motion on August 18, 2014. On October 23, 2014,

the trial court entered an order denying Appellant’s motion to suppress.


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      A nonjury trial was held on January 27, 2015. At the conclusion of the

trial, Appellant was convicted of both crimes with which he was charged.

The trial court sentenced Appellant to serve a term of incarceration of three

to six months for the DUI conviction and a consecutive term of incarceration

of ninety days for the summary offense of driving under suspension (DUI

related).   This timely appeal followed.   Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. WHETHER THE LOWER COURT ERRED IN FINDING THAT
      THERE WAS SUFFICIENT EVIDENCE PRODUCED AT TRIAL TO
      SUSTAIN A CONVICTION FOR DRIVING UNDER THE INFLUENCE,
      AS THE COMMONWEALTH FAILED TO PRESENT EVIDENCE THAT
      THE APPELLANT WAS INCAPABLE OF SAFELY DRIVING AS A
      RESULT OF ALCOHOL.

      2. WHETHER THE TRIAL COURT ERRED IN DENYING THE
      APPELLANT’S PRETRIAL SUPPRESSION MOTION, WHEREIN THE
      ARRESTING OFFICER DID NOT HAVE THE REQUISITE
      REASONABLE SUSPICION TO STOP THE VEHICLE?

Appellant’s Brief at 4.

      Appellant first argues that there was insufficient evidence to support

his conviction of DUI.      Appellant’s Brief at 9-10. Basically, Appellant

contends that the Commonwealth failed to establish that he was incapable of

safely driving because he obeyed traffic signals, did not swerve, and used

proper signaling while he was driving.

      When reviewing a challenge to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as


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verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.          Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007). “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.”

Id. (quoting Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super.

2005)).       However, the Commonwealth need not establish guilt to a

mathematical certainty, and it may sustain its burden by means of wholly

circumstantial evidence. Id. In addition, this Court may not substitute its

judgment for that of the factfinder, and where the record contains support

for the convictions, they may not be disturbed. Id. Lastly, we note that the

finder of fact is free to believe some, all, or none of the evidence presented.

Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa. Super. 2006).

      The relevant DUI statute, 75 Pa.C.S. § 3802, provides in pertinent part

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.

75 Pa.C.S. § 3802(a)(1).

      This Court has instructed that to establish a defendant is not capable

of   safely    driving   a   vehicle   due   to   consumption   of   alcohol,   “the



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Commonwealth must prove that alcohol has substantially impaired the

normal mental and physical faculties required to operate the vehicle safely;

‘substantial impairment’ means a diminution or enfeeblement in the ability to

exercise judgment, to deliberate or to react prudently to changing

circumstances and conditions.” Commonwealth v. Kerry, 906 A.2d 1237,

1241 (Pa. Super. 2006) (quoting Commonwealth v. Gruff, 822 A.2d 773

781 (Pa. Super. 2003)).     “Section 3802(a)(1), like its predecessor, ‘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.’”   Id. (quoting Commonwealth v. Loeper, 663 A.2d 669,

673-674 (Pa. 1995)).     As noted by this Court, a police officer who has

perceived a defendant’s appearance and acts is competent to express an

opinion as to the defendant’s state of intoxication and ability to safely drive

a vehicle.   Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super.

2000).

      The trial court made the following relevant observations regarding

Appellant’s challenge to the sufficiency of the evidence:

            Here, the evidence was sufficient to establish beyond a
      reasonable doubt that [Appellant] drove a vehicle when he was
      rendered incapable of safely doing so due to alcohol
      consumption. Helm testified that [Appellant] stopped suddenly
      at a traffic light and almost hit a legally parked car. Helm
      noticed that [Appellant] had glassy eyes; he also noticed an odor
      of alcohol. [Appellant] argued with Helm and would not listen to
      the instructions on the field sobriety tests. During the one-leg

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      stand, [Appellant] lifted his foot only an inch, swayed, and raised
      his arms. On the walk and turn, [Appellant] wanted to start the
      test early and thrice missed heel to toe contact. Additionally,
      [Appellant] did not finish the walk and turn. After observing the
      sobriety tests, both Helm and [Sergeant Kristopher] Moore
      believed that [Appellant] was incapable of safely driving as a
      result of alcohol consumption. [Appellant] testified that there
      were “too many things going on” to finish the tests. He “talked
      over” Helm when Helm was trying to explain the chemical testing
      law, and he refused the blood draw. Such evidence is sufficient
      to establish DUI (incapable of safely driving) beyond a
      reasonable doubt.

Trial Court Opinion, 4/13/15, at 5.

      Likewise, our review of the record supports the conclusion made by

the trial court.   Lieutenant Helm offered detailed testimony regarding his

personal experiences as a police officer, Appellant’s erratic driving that led to

the vehicle stop, Appellant’s physical appearance during the stop that

included glassy eyes, slow speech, and odor of alcohol, Appellant’s

argumentative behavior, and Appellant’s inability to properly complete two

field sobriety tests.   N.T., 1/27/15, at 4-12.    Based upon the foregoing,

Lieutenant Helm opined that Appellant was impaired as a result of alcohol

and was not capable of safe driving.     Id. at 12-13. In addition, Sergeant

Moore testified regarding his extensive experience as a police officer, and

what transpired upon arriving at the scene as back-up for Lieutenant Helm.

Id. at 30-34.      Sergeant Moore stated that “from the second I got there

[Appellant] appeared to be under the influence of alcohol and/or drugs,

[was] belligerent, failing to obey commands and directions.”         Id. at 32.

Sergeant Moore opined that, based upon his interactions with and

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observations of Appellant, Appellant was under the influence of alcohol and

was not capable of safely driving.       Id. at 33-34. Viewing the facts in the

light most favorable to the Commonwealth as the verdict winner, we

conclude that the Commonwealth demonstrated, beyond a reasonable

doubt, that Appellant was driving while under the influence of alcohol to a

degree that rendered him incapable of safe driving. Therefore, Appellant’s

contrary claim lacks merit.

      In his second issue, Appellant argues that the trial court erred in

failing to grant his motion to suppress.           Appellant’s Brief at 10-12.

Specifically, Appellant contends that the arresting officer lacked reasonable

suspicion to stop Appellant’s vehicle.

      With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of a suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontradicted when read in the context of
      the record. . . . Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “It 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. Gallagher, 896 A.2d 583, 585 (Pa. Super.

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2006).    Moreover, we note that our scope of review from a suppression

ruling is limited to the evidentiary record that was created at the

suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).1

       Further, we are aware that Pennsylvania Rule of Criminal Procedure

581, which addresses the suppression of evidence, provides in relevant part

as follows:

       (H) The Commonwealth shall have the burden . . . of
       establishing that the challenged evidence was not obtained in
       violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

              The Fourth Amendment to the United States Constitution
       and Article I, Section 8 of the Pennsylvania Constitution protect
       individuals from unreasonable searches and seizures, thereby
       ensuring the “right of each individual to be let alone.”
       Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d
       854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.
       Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).


____________________________________________


1
  On October 30, 2013, our Supreme Court decided In re L.J. In L.J., our
Supreme Court held that our scope of review from a suppression ruling is
limited to the evidentiary record that was created at the suppression
hearing. In re L.J., 79 A.3d at 1087. Prior to L.J., this Court routinely held
that, when reviewing a suppression court’s ruling, our scope of review
included “the evidence presented both at the suppression hearing and at
trial.” Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa. Super. 2011)
(quoting Commonwealth v. Chacko, 459 A.2d 311 (Pa. 1983)). L.J. thus
narrowed our scope of review of suppression court rulings to the evidence
presented at the suppression hearing. In this case, Appellant’s case was
initiated after L.J. was decided. Therefore, the procedural rule announced in
L.J. applies to the case at bar.



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       To secure the right of citizens to be free from intrusions by police,

courts in Pennsylvania require law enforcement officers to demonstrate

ascending levels of suspicion to justify their interactions with citizens as

those interactions become more intrusive.              Commonwealth v. Beasley,

761 A.2d 621, 624 (Pa. Super. 2000).

       It is undisputed that:

       [s]tate case law recognizes three categories of interaction
       between police officers and citizens, which include: (1) a mere
       encounter, or request for information, which need not be
       supported by any level of suspicion, but which carries no official
       compulsion to stop or to respond; (2) an investigative detention,
       which must be supported by reasonable suspicion as it subjects
       a suspect to a stop and a period of detention, but does not
       involve such coercive conditions as to constitute the functional
       equivalent of an arrest; and (3) arrest or custodial detention,
       which must be supported by probable cause.

Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en

banc).

       “[T]he standards concerning the quantum of cause necessary for an

officer   to    stop    a    vehicle    in     this   Commonwealth   are   settled.”

Commonwealth v. Feczko, 10 A.3d 1285, 1290-1291 (Pa. Super. 2010).

Traffic stops based on a reasonable suspicion of criminal activity or a

violation of the Motor Vehicle Code under the authority of section 6308(b), 2


____________________________________________


2
  Section 6308(b) of the Motor Vehicle Code provides, in pertinent part, as
follows:

(Footnote Continued Next Page)


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must serve a stated investigatory purpose.          Id. at 1291.   Reasonable

suspicion exists when there are specific and articulable facts that create a

reasonable suspicion, based on the officer’s experience, that there is criminal

activity afoot.   Commonwealth v. Sands, 887 A.2d 261, 271-272 (Pa.

Super. 2005). Officers may initiate a stop based upon reasonable suspicion

to gather further information to support the enforcement of the Motor

Vehicle Code. 75 Pa.C.S. § 6308(b); Feczko, 10 A.3d at 1288. DUI is a

violation for which there is a need for further investigation.     Sands, 887

A.2d at 270.

      In its opinion drafted pursuant to Pa.R.A.P. 1925(a), the trial court

addressed this issue as follows:

             As discussed in the Court’s opinion filed on October 23,
      2014, [which addressed Appellant’s motion to suppress,] Helm
      articulated specific facts, which were sufficient to provide him
      with reasonable suspicion to believe that [Appellant] was
      committing DUI. Helm saw [Appellant’s] vehicle stop suddenly
      at a red light even though the light was red as the vehicle
      approached the intersection. When the vehicle came to a stop,
      half of it was over the stop line. When the light turned green,
      the vehicle accelerated rapidly and Helm heard a slight “chirp” of
      the tires. The vehicle made a wide turn and almost hit legally
                       _______________________
(Footnote Continued)

      Whenever a police officer . . . 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.

75 Pa.C.S. § 6308(b).



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      parked vehicles. Although not mentioned in the October 23,
      2014 opinion, during the suppression hearing, Helm testified that
      a driver could make the turn without coming close to the parked
      vehicles. Helm observed [Appellant] make another turn without
      slowing down much. He testified that sudden behavior is a
      major indicator of impaired driving. Although [Appellant] was
      not speeding and used his turn signal, the totality of the
      circumstances shows that Helm had reasonable suspicion that
      [Appellant] was committing DUI.

Trial Court Opinion, 4/13/15, at 6-7.

      Likewise, our review of the record reflects that the facts, in the

knowledge of the officer at the time, were sufficient to establish reasonable

suspicion necessary to stop Appellant’s vehicle.   Thus, because the police

officer articulated facts at the suppression hearing that amounted to

reasonable suspicion, we conclude that the stop of Appellant’s vehicle was

lawful. Accordingly, the trial court did not err in denying Appellant’s motion

to suppress evidence obtained following the stop of the vehicle and

Appellant’s second issue lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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