J-S56038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JEREMIAH A. SELVEY,

                            Appellant                  No. 810 MDA 2015


              Appeal from the Judgment of Sentence April 29, 2015
                in the Court of Common Pleas of Franklin County
               Criminal Division at No.: CP-28-CR-0000178-2013


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

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

        Appellant, Jeremiah A. Selvey, appeals from the judgment of sentence

entered on April 29, 2015, following his conviction of three counts of driving

under the influence (DUI).1 On appeal, Appellant challenges the denial of his

motion to suppress. For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s opinion of February 16, 2015, and our independent

review of the certified record.

             Testimony was taken at the suppression hearing on
        December 26, 2013. At the hearing the arresting officer, Officer
        Matthew Lynch of the Chambersburg Police Department, was the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(d)(1)(i), (ii), and (d)(2).
J-S56038-15


     sole witness to testify. Officer Lynch testified that he has
     completed numerous training courses relating to the detection of
     impairment including:      Drug Recognition School; Field
     Coordination; Drug Recognition Expert School; Standardized
     Field Sobriety Testing Instructor Course; Advance Roadside
     Impaired Driving Enforcement Seminar; and Standardized Field
     Sobriety Testing Training.

            The salient facts are as follows. On October 14, 2012 at
     around 1:09 a.m., Officer Lynch observed [Appellant’s] vehicle
     being driven in the area of Hood Street very slowly in what he
     believed to be an overly cautious manner. Officer Lynch testified
     that there were only a handful of cars in the area and at that
     time of day [and in that area,] there tends to be more impaired
     drivers on the road. Officer Lynch followed [Appellant] for a
     short time and did not observe [him] commit any traffic
     violations. Shortly thereafter Officer Lynch conducted a vehicle
     stop after confirming that the registration on the vehicle was
     suspended. Initially Officer Lynch noticed [Appellant] stopped
     his vehicle in the middle of the road even though there was
     room on the side of the road for [him] to stop. [After remaining
     in the middle of the road for several seconds, Appellant pulled
     his car over to the right side of the road.] Officer Lynch then
     made contact with [Appellant], standing less than an arm’s
     length away.       Officer Lynch immediately smelled alcohol
     emanating from the vehicle. Officer Lynch noticed [Appellant’s]
     eyes were glassy and he had reddened conjunctiva, i.e., pinkeye
     [a known side effect of marijuana use]. Officer Lynch testified
     that when asking [Appellant] questions it seemed as though he
     had a hearing problem or that he did not comprehend because
     he did not respond at normal speed. Officer Lynch further
     testified that when he asked [Appellant] for the car registration,
     [he] slowly and lethargically sifted through his papers.

            Officer Lynch then requested that [Appellant] alight from
     his vehicle to perform field sobriety tests. [Appellant] was asked
     three times to step out of the vehicle before he responded. The
     first test that [Appellant] performed was the Horizontal Gaze
     Nystagmus (“HGN”) Test.         Officer Lynch observed no HGN
     although he testified that HGN is generally activated by alcohol.
     During the HGN Test [Appellant] did show a lack of convergence
     which indicated recent cannabis usage according to Officer
     Lynch. [Appellant] also performed the Romberg Balance Test
     where he estimated the passage of 30 seconds in 12 seconds.

                                   -2-
J-S56038-15


      Officer Lynch also noticed [he] had body [and eye] tremors.
      Officer Lynch noticed other signs of recent cannabis [usage]
      such as dilated pupils, green discoloration of the tongue; and
      [Appellant’s] heart rate was abnormally high at 136 beats per
      minute. When asked when he last smoked [cannabis, Appellant]
      responded, “60 to 90 days ago.” In Officer Lynch’s opinion
      according to his experience, training and education, [Appellant]
      showed several signs that he was incapable of safe driving.

(Trial Court Opinion, 2/16/15, at 1-3).

      Officer Lynch arrested Appellant and transported him to Chambersburg

Hospital for a blood draw. (See N.T. Suppression Hearing, 12/26/13, at 25).

Appellant’s blood tested positive for marijuana use.      (See id. at 26).    On

March 4, 2013, the Commonwealth filed a criminal information charging

Appellant with the above-mentioned offenses.       On May 1, 2013, Appellant

filed a motion to suppress.    The trial court held a hearing on Appellant’s

motion on December 26, 2013. On February 14, 2014, the trial court denied

Appellant’s motion to suppress.

      On September 11, 2014, the trial court issued an order memorializing

the parties’ agreement to a non-jury trial.         They also agreed to the

admittance of the blood tests results, and that the only witnesses testifying

would be Officer Lynch and possibly Appellant.      On October 23, 2014, the

trial court issued a second order stating that, at the time of trial, the parties

agreed that the trial court could decide Appellant’s guilt or innocence based

upon the transcript of the testimony from the suppression hearing.            On

February 16, 2015, the trial court found Appellant guilty of the above-

mentioned charges. On April 29, 2015, the trial court sentenced Appellant

                                      -3-
J-S56038-15


to a term of incarceration of not less than two nor more than six months.

Appellant did not file any post-trial motions.

      On May 11, 2015, Appellant filed a timely notice of appeal. On May

12, 2015, the trial court directed Appellant to file a concise statement of

errors complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed his

timely Rule 1925(b) statement on May 20, 2015. On May 21, 2015, the trial

court issued an opinion adopting its earlier opinion of February 16, 2015.

See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following question for our review:

             Did the suppression court err in denying [Appellant’s]
      [m]otion to [s]uppress the seizure of [Appellant’s] person, his
      subsequent arrest and the results of the blood test, because the
      seizure, arrest and blood test were all performed without
      sufficient probable cause by the arresting officer to believe that
      [Appellant’s] ability to drive was impaired, thereby violating
      [Appellant’s Fourth] Amendment rights?

(Appellant’s Brief, at 8).

      On appeal, Appellant challenges the denial of his motion to suppress.

(See id. at 14-18). When we review a ruling on a motion to suppress, “[w]e

must determine whether the record supports the suppression court’s factual

findings and the legitimacy of the inferences and legal conclusions drawn

from these findings.”    Commonwealth v. Holton, 906 A.2d 1246, 1249

(Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation

omitted). Because the court in the instant matter found for the prosecution,

we will consider only the testimony of the prosecution’s witnesses and any


                                      -4-
J-S56038-15


uncontradicted evidence supplied by Appellant.      See id.    If the evidence

supports the suppression court’s factual findings, we can reverse only if

there is a mistake in the legal conclusions drawn by the court. See id.

      On appeal, Appellant admits that Officer Lynch had probable cause to

effectuate the stop of his vehicle. (See Appellant’s Brief, at 15). However,

Appellant argues that, “this suspended registration was not an indicator of

impaired driving.    In order to conduct a lawful warrantless arrest for DUI,

Officer   Lynch needed to     have   additional probable    cause   to   believe

[Appellant] was impaired.”     (Id.) (citation omitted).   Appellant maintains

that Officer Lynch did not perform all the field sobriety tests and did not

observe any impaired driving.     (See id. at 17-18).      He asserts that the

results of the blood test should have been suppressed. We disagree.

      Officer Lynch arrested Appellant for violations of 76 Pa.C.S.A. § 3802,

which states in pertinent part:

      (d) Controlled substances.--An individual may not drive, operate
      or be in actual physical control of the movement of a vehicle
      under any of the following circumstances:

            (1) There is in the individual’s blood any amount of
            a. . . .

                    (iii) metabolite of a substance under
                    subparagraph (i) or (ii).

75 Pa.C.S.A. § 3802(d)(1)(iii). Thus, as the Commonwealth correctly states,

(see Commonwealth’s Brief, at 4), a defendant does not need to be

impaired to violate this statute, which prohibits driving when a defendant


                                     -5-
J-S56038-15


has     any   amount   of   a   controlled    substance   in   his   blood.   See

Commonwealth v. Etchison, 916 A.2d 1169, 1174 (Pa. Super. 2007),

affirmed, 943 A.2d 262 (Pa. 2008).           A police officer has the authority to

arrest an individual without a warrant if there is probable cause to believe

the person violated the DUI statute. See Commonwealth v. Dommel, 885

A.2d 998, 1001 (Pa. Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007).

Our Supreme Court has stated:

        Probable cause is made out when the facts and circumstances
        which are within the knowledge of the officer at the time of the
        arrest, and of which he has reasonably trustworthy information,
        are sufficient to warrant a man of reasonable caution in the
        belief that the suspect has committed or is committing a crime.
        The question we ask is not whether the officer’s belief was
        correct or more likely true than false. Rather, we require only a
        probability, and not a prima facie showing, of criminal activity.
        In determining whether probable cause exists, we apply a
        totality of the circumstances test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citations

and quotation marks omitted, emphasis in original). The Court also stated

that:

        [p]robable cause is a practical, nontechnical conception: it is a
        fluid concept—turning on the assessment of probabilities in
        particular factual contexts not readily, or even usefully, reduced
        to a neat set of legal rules. Indeed, the instant case illustrates
        as clearly as any other the very reason we adopted this
        approach, namely, the need to be mindful of the notion of
        probable cause as based on the factual and practical
        considerations of everyday life on which reasonable and prudent
        men, not legal technicians, act.

Commonwealth v. Ruey, 892 A.2d 802, 815-16 (Pa. 2006) (citations and

quotation marks omitted).

                                       -6-
J-S56038-15


       Recognizing these principles, this Court has stated:

             Probable cause does not involve certainties, but rather the
       factual and practical considerations of everyday life on which
       reasonable and prudent men act. It is only the probability and
       not a prima facie showing of criminal activity that is a standard
       of probable cause. To this point on the quanta of evidence
       necessary to establish probable cause . . . finely tuned standards
       such as proof beyond a reasonable doubt or by a preponderance
       of the evidence, useful in formal trials, have no place in the
       [probable-cause] decision.

Dommel, supra at 1002 (citations and quotation marks omitted).

       Here, the record shows that, at 1:09 a.m., Officer Lynch, an

experienced police officer with extensive training in recognizing individuals

driving under the influence, was patrolling at a time and in an area where it

was common for persons to drive under the influence.                (See N.T.

Suppression Hearing, at 5-10). He testified that Appellant was driving in a

very slow and overly cautious manner and a check showed that his

registration was suspended. (See id. at 10-11). Despite there being places

to pull over, Appellant stopped in the middle of the road, waited several

seconds and then pulled over to the side of the road.         (See id. 11-12).

Upon making contact, Officer Lynch smelled alcohol emanating from the

vehicle and noticed Appellant’s eyes were glassy and pinkish.      (See id. at

12).   He testified that “pink eye” is a common side effect of marijuana

consumption. (Id. at 14; see id. at 14-15). Officer Lynch observed that

Appellant had difficulty responding to questions, in finding the relevant




                                     -7-
J-S56038-15


license, registration and insurance documents, and moved in a slow,

lethargic manner. (See id. at 12-13).

     Officer Lynch asked Appellant to exit his vehicle but Appellant did not

appear to understand the request, and had to be asked three times before

slowly leaving the vehicle. (See id. at 16). Officer Lynch again observed

that Appellant’s eyes were glassy, red, and his pupils were dilated. (See id.

at 14-15).    Appellant admitted to marijuana use within the last sixty to

ninety days. (See id. at 25).

     Officer Lynch detected several other signs of marijuana use when he

performed the HGN and Romberg Balancing field sobriety tests. (See id. at

19-20). These included: eye tremors, body tremors, lack of convergence

during the HGN test, green discoloration of the tongue, and an inability to

correctly estimate the passage of time. (See id.). He took Appellant’s pulse

and found his heart rate to be highly elevated, another known symptom of

marijuana use; he testified that, based upon his experience, Appellant’s

pulse was too high to be caused by the fact of the traffic stop. (See id. at

21-23).   Officer Lynch stated that he could not perform the full range of

sobriety tests because of problems with the terrain. (See id. at 19-20).

     Initially, we note that this Court does not require the failure of field

sobriety tests in order to arrest an individual for DUI. See Commonwealth

v. Simmen, 58 A.3d 811, 817 (Pa. Super. 2012).          Moreover, “[e]rratic

driving is not a super-factor, much less one determinative of DUI.”


                                    -8-
J-S56038-15


Commonwealth v. Salter, — A.3d —, 2015 WL 4626915, at *5 (Pa.

Super., filed August 4, 2015).

      Here, Appellant, driving a vehicle with registration under suspension,

had problems obeying police commands promptly, had glassy and pinkish

eyes, dilated pupils, a green discoloration of his tongue, failed field sobriety

tests and exhibited several other known signs of marijuana use.          In the

totality of the circumstances, Officer Lynch had sufficient probable cause to

arrest Appellant for DUI.   See id. (despite absence of erratic driving and

slurred speech, there was probable cause to arrest where there was odor of

alcohol emanating     from vehicle, defendant had bloodshot eyes            and

performed poorly on field sobriety tests); see also Commonwealth v.

Weaver, 76 A.3d 562, 568 (Pa. Super. 2013), affirmed, 105 A.3d 656 (Pa.

2014) (sufficient probable cause to arrest where defendant was sluggish and

slow to respond to commands and failed HGN test); Simmen, supra at

817-18; Commonwealth v. Angel, 946 A.2d 115, 118 (Pa. Super. 2008)

(sufficient probable cause to arrest on suspicion of DUI, even in absence of

field sobriety tests, where defendant had slurred speech, smelled of alcohol,

and had glassy eyes).       The trial court properly denied the motion to

suppress. Appellant’s claim lacks merit.

      Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.


                                     -9-
J-S56038-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




                          - 10 -
