J-S46023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DALE LEE TOOT,

                            Appellant                 No. 247 MDA 2017


           Appeal from the Judgment of Sentence January 10, 2017
               In the Court of Common Pleas of Adams County
             Criminal Division at No(s): CP-01-CR-0000674-2016


BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                            FILED AUGUST 29, 2017

       Appellant, Dale Lee Toot, appeals from the judgment of sentence

entered on January 10, 2017, following his bench trial convictions for driving

under the influence of alcohol (DUI) (general impairment - incapable of safe

driving), DUI (general impairment - blood alcohol content (BAC) between

.08% and .10%), and driving while operating privilege is suspended or

revoked.1 We affirm.

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

       On February 5, 2016, at approximately 12:48 a.m., Officer
       [Anthony] Gilberto [an officer with the Littlestown Police
       Department] was on duty, in full uniform, in a marked police
       vehicle when he observed a blue pick-up truck pull from Patrick
       Avenue eastbound on to West King Street in the Borough of
____________________________________________


1
  75 Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 3802(a)(2), and 75 Pa.C.S.A.
§ 1543, respectively.



* Former Justice specially assigned to the Superior Court.
J-S46023-17


     Littlestown. The blue pick-up truck did not appear to stop at the
     posted stop sign. Within minutes[,] Officer Gilberto observed
     what appeared to be the same blue pick-up truck turn right from
     Charles Street onto South Queen Street in Littlestown Borough.
     He then observed the pick-up truck continue [s]outhbound on
     South Queen Street. Officer Gilberto was directly behind the
     blue pick-up truck on South Queen Street. Officer Gilberto
     observed the blue pick-up truck slow to an almost complete stop
     at the intersection of South Queen Street and Boyer Street.
     Officer Gilberto then observed the blue pick-up truck activate its
     right turn signal and make a right turn onto Boyer Street at an
     unusually slow rate of speed. Officer Gilberto followed the blue
     pick-up truck onto Boyer Street and observed the blue pick-up
     truck make a right turn onto M Street.

     Officer Gilberto lost sight of the blue pick-up truck for “less than
     two seconds” and made a right turn onto M Street. Officer
     Gilberto observed a blue Ford pick-up truck pull to the curb in
     the 200 block of M Street. Officer Gilberto observed a male
     occupant step out from the driver’s door of the pick-up truck,
     look in the direction of the police vehicle, immediately get back
     into the pick-up truck, shut the door and lay down on the floor of
     the pick-up truck. Officer Gilberto then proceeded [n]orthbound
     on M Street past the pick-up truck and stopped approximately
     fifty feet ahead of the pick-up truck. Officer Gilberto observed
     the driver sit back up, look in the direction of his police vehicle
     and then quickly lay back down. Officer Gilberto backed the
     police vehicle down M Street to the rear of the blue Ford pick-up
     truck.    Officer Gilberto never activated his lights or sirens.
     Officer Gilberto checked the registration of the pick-up truck and
     observed that it was registered to a Gary Rosenberry, Sr.
     Officer Gilberto knows Gary Rosenberry, Sr., and the driver of
     the blue pick-up truck was not Gary Rosenberry, Sr.

     Officer Gilberto exited his patrol vehicle, approached the parked
     pick-up truck and observed a male (later identified as
     [Appellant]) laying [sic] on the floor of the pick-up truck. There
     were no other occupants in the vehicle. Officer Gilberto knocked
     on the driver’s side window.        [Appellant] did not move or
     respond. Officer Gilberto knocked several more times, stated “I
     see you on the floor” and asked [Appellant] to sit up.
     [Appellant] did not move or respond to Officer Gilberto. Officer
     Gilberto then opened the driver’s door and asked [Appellant]
     what he was doing.        [Appellant] did not respond.      Officer

                                    -2-
J-S46023-17


        Gilberto asked[,] “Sir, are you okay?” The driver then got off
        the floor and advised “I’m fine. I’m fine.”

        While interacting with [Appellant], Officer Gilberto observed
        [Appellant’s] face was flushed, his eyes were red, and his
        movements and speech were slow.              Officer Gilberto also
        detected a strong odor of alcoholic beverage coming from
        [Appellant’s] breath. [Appellant’s] responses concerning the
        ownership of the pick-up truck were deceptive and unclear.
        [Appellant] advised Officer Gilberto that he had been shooting
        pool at the North Street Tavern in Hanover and that he had “two
        beers.” [Appellant] later advised that he had three “Bud Lights.”
        When [Appellant] exited the pick-up truck his movements were
        uncoordinated and slow.          At Officer Gilberto’s direction,
        [Appellant] submitted to standard field sobriety tests (SFST). In
        Officer Gilberto’s opinion, [Appellant] did not follow proper
        instructions concerning the SFST tests, and [Appellant] showed
        signs of impairment. At Officer Gilberto’s direction, [Appellant]
        agreed to take a [portable breathalyzer test (PBT)]. [Appellant]
        did not follow Officer Gilberto’s instructions and appeared to be
        “sucking in” instead of “blowing” during the PBT test.
        [Appellant] did this approximately four times. Officer Gilberto
        was unable to obtain a result.

        Based on [] Officer Gilberto’s observations of [Appellant], Officer
        Gilberto placed [Appellant] under arrest for DUI, handcuffed him
        and placed him in the back of the police vehicle. Officer Gilberto
        transported [Appellant] to Gettysburg Hospital. While driving to
        Gettysburg Hospital, Officer Gilberto orally advised [Appellant] of
        his Miranda[2] warnings. Officer Gilberto arrived at Gettysburg
        Hospital at approximately 1:22 a.m. While [Appellant] was in
        custody and handcuffed, Officer Gilberto asked “are you willing
        to submit to a chemical test of your blood?” [Appellant] advised
        he would. Officer Gilberto escorted Appellant into Gettysburg
        Hospital [] at 1:40 a.m. [Appellant] consented and blood was
        drawn from [Appellant]. Officer Gilberto never read [a] DL-26
        form to [Appellant] nor did Officer Gilberto have [Appellant] sign
        [a] DL-26 form. Officer Gilberto testified he does not read the
        DL-26 form to a DUI [d]efendant unless a DUI [d]efendant

____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -3-
J-S46023-17


       refuses to submit to a blood draw. Analysis of [Appellant’s]
       blood by NMS Labs revealed a [BAC] of .102.

Trial Court Opinion, 9/14/2016, at 1-5 (unpaginated) (numbered paragraphs

omitted).

       The   Commonwealth charged Appellant with the               aforementioned

charges.3 On July 19, 2016, Appellant filed a motion to suppress. The trial

court held a suppression hearing on August 25, 2016, wherein the

Commonwealth presented the testimony of Officer Gilberto. On September

14, 2016, the trial court issued an opinion and order denying suppression.

The trial court held a bench trial on January 10, 2017 and convicted

Appellant of DUI (general impairment – incapable of safe driving), DUI

(general impairment – blood alcohol content (BAC) between .08% and

.10%), and driving while operating privilege is suspended or revoked.         On

January 10, 2017, after Appellant waived a presentence investigation, the

trial court sentenced Appellant to six months of probation for DUI (general

impairment – incapable of safe driving). The other DUI conviction merged

for sentencing purposes. The trial court rendered no further penalty on the

careless driving summary offense.          This timely appeal ensued.4
____________________________________________


3
  The Commonwealth also charged Appellant with DUI (high rate of alcohol),
75 Pa.C.S.A. § 3802(b). However, the trial court found him not guilty of this
offense.
4
   On January 31, 2017, Appellant filed a notice of appeal. On February 2,
2017, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days of the order. Appellant filed an untimely Rule 1925(b)
(Footnote Continued Next Page)


                                           -4-
J-S46023-17



      On appeal, Appellant presents the following issue for our review:

      I.     Whether the suppression court properly denied Appellant’s
             challenge to the sufficiency of probable cause to arrest him
             for DUI[?]

Appellant’s Brief at 5 (complete capitalization omitted).

      Appellant claims that the suppression court erred and abused its

discretion by denying suppression, because the police lacked probable cause

to arrest him.    Id. at 10-16.          More specifically, Appellant contends that,

“[a]t no time did Officer Gilberto see who was driving the vehicle in

question, or even the number of occupants.”            Id. at 11. Appellant claims

that the trial court precluded him from cross-examining Officer Gilberto

regarding the “locations of the streets in question, their location to each

other, and their distances from each other[,]” because “the evidence would

have shown not only did [Officer Gilberto] lose sight of the vehicle, but that

he lost sight of the vehicle for a substantial period of time.”          Id. at 13.

Appellant also contends that the trial court denied Appellant the ability to

refresh Officer Gilberto’s memory with the affidavit of probable cause and his

police report and “[h]ad Appellant been permitted to cross-examine [Officer]

                       _______________________
(Footnote Continued)

statement on March 2, 2017. The trial court overlooked the late filing and
filed an opinion pursuant to Pa.R.A.P. 1925(a) on March 13, 2017, relying on
its prior opinion denying suppression entered on September 14, 2016.
Because the trial court overlooked the untimely nature of Appellant’s
submission and addressed the issue currently on appeal, we will address the
merits of the issue presented. See Commonwealth v. Priest, 18 A.3d
1235, 1238 n.5 (Pa. Super. 2011) (citations omitted).



                                            -5-
J-S46023-17



Gilberto on his previous statements, it would have shown the court that

[Officer] Gilberto, according to his written reports, never saw a ‘male

occupant exit the vehicle.’”   Id. at 14.   He claims that Officer Gilberto’s

“written statements would have also shown that [Officer] Gilberto did not

become ‘suspicious’ of anything, regarding the vehicle in question, until he

passed the already parked car and saw, in his rear-view mirror, a head pop

up.”    Id.   Appellant, in sum, maintains that because the trial court

improperly excluded cross-examinations regarding the suspect’s connection

to the alleged crimes, he was erroneously denied an opportunity to dispute

the identity of the individual who operated the pick-up truck while impaired.

       Our Supreme Court determined

       that 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.   We are bound by the suppression court's factual
       findings so long as they are supported by the record; our
       standard of review on questions of law is de novo. Where, as
       here, the defendant is appealing the ruling of the suppression
       court, we may consider only the evidence of the Commonwealth
       and so much of the evidence for the defense as remains
       uncontradicted. Our scope of review of suppression rulings
       includes only the suppression hearing record and excludes
       evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations

omitted).

       Regarding probable cause to arrest, our Supreme Court has held:

       There is, of course, no doubt that the issuing authority must
       have probable cause to believe a suspect guilty of a crime

                                    -6-
J-S46023-17


      charged against him before [effectuating] his arrest. This is
      ancient law and basic to our concept of freedom. In determining
      whether probable cause exists, we apply a totality of the
      circumstances test. Probable cause to arrest exists when the
      facts and circumstances within the police officer's knowledge and
      of which the officer has reasonably trustworthy information are
      sufficient in themselves to warrant a person of reasonable
      caution in the belief that an offense has been committed by the
      person to be arrested. 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 reviewing whether probable cause exists, we afford deference
      to a [trial court’s] finding of probable cause. Finally, we note
      that the fact that other inferences could be drawn does not
      demonstrate that the inference that was drawn by the police []
      was unreasonable.

Commonwealth v. Burno, 154 A.3d 764, 781 (Pa. 2017) (internal

citations, original brackets, and quotations omitted).

      Here, the trial court determined:

      Under the totality of the circumstances, Officer Gilberto had
      probable cause to arrest [Appellant] for DUI, including probable
      cause to believe [Appellant] was driving the blue pick-up truck.
      Officer Gilberto observed the pick-up truck turn onto South
      Queen Street. Officer Gilberto maintained visual contact with
      the pick-up truck except for a period of less than two seconds
      when the pick-up truck traveled from Boyer Street onto M
      Street. Officer Gilberto observed the pick-up truck pull to the
      curb on M Street. Officer Gilberto never observed any other
      individual exit or leave the area of the pick-up truck. When
      Officer Gilberto approached the pick-up truck, the only occupant
      of the pick-up truck was [Appellant], who was suspiciously laying
      [sic] on the floor of the pick-up truck. Officer Gilberto clearly
      had probable cause to believe [Appellant] was operating the
      pick-up truck.

Trial Court Opinion, 9/14/2016, at 7-8 (unpaginated).


                                     -7-
J-S46023-17



      Upon review of the record, we agree with the trial court’s assessment

that the police had probable cause to arrest Appellant and, therefore, the

trial court did not abuse its discretion in denying suppression.         At the

suppression hearing, Officer Gilberto admitted that he did not see Appellant

driving the car. N.T., 8/25/2016, at 47.     However, Officer Gilberto testified

that the blue pick-up truck he was following was “very distinctive looking.”

Id. at 12. Officer Gilberto testified that he only lost sight of the vehicle for

“less than two seconds.” Id. at 59. Thus, we reject Appellant’s suggestion

that it was unclear how long Officer Gilberto lost visual contact with the

vehicle in question.   Defense counsel also sought to have Officer Gilberto

draw a diagram of the streets at issue herein; however, the trial court

prohibited it, because there was no dispute that the police did not institute a

traffic stop in this case. Id. at 34. Thus, such cross-examination regarding

precise distances and locations of the streets traveled was irrelevant as to

whether there was probable cause to arrest Appellant for DUI. However, the

trial court did allow Appellant to cross-examine Officer Gilberto regarding his

account of events leading up to Appellant’s arrest, including following the

blue pick-up truck.    Id. at 35-40.    Officer Gilberto testified that he saw

Appellant get out of the vehicle from the driver’s side, look back at the

marked police car, and then jump back in and hide on the floor of the truck.

Id. at 15, 58. Officer Gilberto did not observe anyone else in the vehicle or

in the area around the vehicle when he reestablished contact after losing the

vehicle for less than two seconds.      Id. at 58.   Officer Gilberto identified

                                       -8-
J-S46023-17



Appellant in court. Id. at 18. Finally, we note that Officer Gilberto testified

that Appellant admitted that he drove past his ex-girlfriend’s house after

leaving the North Street Tavern, and just prior to this interaction with police.

Id. at 59-60. Based upon all of the foregoing, we conclude that the facts

and circumstances within Officer Gilberto's knowledge were sufficient to

warrant a person of reasonable caution to believe that Appellant was driving

the blue pick-up truck.5          Hence, we affirm the trial court’s denial of

suppression.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2017




____________________________________________


5
    Because Appellant does not challenge the trial court’s determination that
Officer Gilberto’s observations provided probable cause to believe that
Appellant was intoxicated, we need not address that aspect of the case.



                                           -9-
