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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                      v.                       :
                                               :
JUSTIN LEE HERP,                               :          No. 1900 WDA 2014
                                               :
                            Appellant          :


           Appeal from the Judgment of Sentence, November 13, 2014,
                  in the Court of Common Pleas of Butler County
                Criminal Division at No. CP-10-CR-0000210-2014


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED JANUARY 07, 2016

         Justin Lee Herp appeals from the judgment of sentence entered on

November 13, 2014, in the Court of Common Pleas of Butler County

following the trial court’s denial of his omnibus pre-trial motion to suppress

and      his   conviction   of    driving   under   the    influence   (“DUI”)-general

impairment, 75 Pa.C.S.A. § 3802(a)(1) and DUI-highest rate, 75 Pa.C.S.A.

§ 3802(c). He was sentenced to 30 days to 6 months of incarceration and a

$750 fine. We affirm.

         On     December         26-27,     2013,   Pennsylvania       State   Trooper

Christopher Cialella was working the 11 p.m. to 7 a.m. shift on patrol, in

uniform, and in a marked vehicle with Trooper Knirnschild. It had snowed

earlier that day. There was snow cover on the ground and the roads were

slick.     At 3:20 a.m., while traveling eastbound on State Route 422,
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Trooper Cialella observed appellant performing “donuts” with his Jeep

Cherokee SUV in the private parking lot of the Assembly of God Church.

(Transcript of proceedings, 5/16/14 at 8.) Appellant’s vehicle was spinning

around. No other vehicles were in the parking lot, and the parking lot did

not have any trees or light posts.   There were commercial and residential

structures in the immediate area around the church. Trooper Cialella found

it to be “suspicious” because it was 3:30 in the morning.     (Id.)   He also

believed that in doing donuts, appellant was “a reckless danger to himself”

and that “[h]e could have flipped the vehicle.” (Id. at 18.) Trooper Cialella

observed appellant’s vehicle abruptly leave the parking lot.    The trooper

followed appellant one quarter of a mile on Route 422 and activated the

emergency lights on his vehicle just as appellant turned left onto Golden

Lane, a one-lane road. (Id. at 21.) Appellant “was waving his hands out

the driver’s side window,” traveled approximately 60 yards or about

30-45 seconds, passing several places he could have pulled over and

stopped his car, and then eventually stopped at his residence. (Id. at 13,

22, 33, 36.)

      Appellant was ordered out of the vehicle at gunpoint. When appellant

exited his vehicle, Trooper Cialella’s partner patted appellant down for

weapons.    Appellant informed the police that he had a large knife on his

person. The troopers then handcuffed appellant from behind on the hood of

his car.   After appellant was handcuffed, Trooper Cialella asked appellant



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about doing donuts in the church parking lot. Appellant said that he “was

having fun.”        (Id. at 15.)   Trooper Cialella detected the “faint odor” of

alcohol.    (Id.)    Besides the faint smell of alcohol, Trooper Cialella did not

observe any other indicia of impairment. Appellant did not have bloodshot

eyes; he was not staggering or slurring his speech.                (Id. at 25.)

Trooper Cialella asked appellant if he had anything to drink, and appellant

told him he had “a few drinks.” At that point, Trooper Cialella administered

a preliminary breath test (“PBT”) which registered positive. Trooper Cialella

did not conduct standard field sobriety tests because of the weather

conditions.    Appellant was placed in the patrol car and transported to the

hospital for a consented blood draw. Appellant’s blood alcohol content was

0.162 percent.

        Appellant was charged with DUI-general impairment, DUI-highest rate,

failing to stop upon request or signal of a police officer1 and reckless

driving.2

        On April 21, 2014, appellant filed an omnibus pre-trial motion

challenging the propriety of the vehicle stop and seeking to suppress the

evidence obtained therefrom.           Specifically, appellant argued that the

troopers lacked reasonable suspicion to justify the initial traffic stop. He was

alone in the parking lot and posed no risk of danger to himself or anyone


1
    75 Pa.C.S.A. § 6308(a).
2
    75 Pa.C.S.A. § 3736(a).


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else. He further argued that once his vehicle was stopped, a sufficient basis

did not exist to order appellant out of his vehicle at gunpoint, pat him down

for weapons, and handcuff him. He contends that he was subjected to the

functional equivalent of an arrest, yet he was not given his Miranda3

warnings; therefore, the odor of alcohol on his breath, the results of the

PBT, and any statements he made about having a “few drinks” should be

suppressed. He also argued that the troopers did not have probable cause

to arrest him and transport him for chemical testing because, besides the

faint odor of alcohol on his breath, there were no other indicia of impairment

such as erratic driving, bloodshot eyes, staggering, or slurring.

        A suppression hearing was held on May 16, 2014.        At the hearing,

Trooper Cialella testified on cross-examination, that he stopped appellant

because he observed appellant driving in a reckless manner. He handcuffed

appellant because:     “it was a high risk stop”; appellant “did not stop

immediately”; he was “waving his hands out the window”; and the stop

occurred in a dark and unfamiliar place. (Id. at 24.)

        The trial court denied appellant’s suppression motion on August 1,

2014.

        A stipulated non-jury trial was conducted on October 31, 2014. The

trial court considered the testimony of Trooper Cialella which was given at

the suppression hearing and a video recording from the officer’s patrol car.


3
    Miranda v. Arizona, 384 U.S. 436 (1966).


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The trial court found appellant guilty of DUI-general impairment, under

75 Pa.C.S.A. §§ 3802(a)(1), and DUI-highest rate, under § 3802(c), and not

guilty of the remaining charges.    On November 13, 2014, appellant was

sentenced to a term of 30 days to 6 months’ imprisonment plus a $750 fine.

This timely filed appeal followed. Both appellant and the trial court complied

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

      On appeal, appellant raises the following issues:

            I.     WHETHER THE SUPPRESSION COURT ERRED
                   IN DETERMINING THAT THE STOP OF THE
                   APPELLANT’S MOTOR VEHICLE WAS LAWFUL
                   AND; SUPPORTED BY PROBABLE CAUSE THAT
                   A VEHICLE CODE VIOLATION HAD OCCURRED;
                   OR REASONABLE SUSPICION THAT A VEHICLE
                   VIOLATION WAS ONGOING THAT REQUIRED
                   ADDITIONAL INVESTIGATION[?]

            II.    WHETHER THE SUPPRESSION COURT ERRED
                   IN ITS DETERMINATION THAT THE APPELLANT
                   WAS NOT UNLAWFULLY DETAINED WHEN HE
                   WAS IMMEDIATELY CUFFED UPON REMOVAL
                   FROM    HIS  MOTOR    VEHICLE  BY   THE
                   PENNSYLVANIA STATE POLICE[?]

            III.   WHETHER THE SUPPRESSION COURT ERRED
                   IN   ITS   DETERMINATION    THAT   THE
                   PENNSYLVANIA    STATE    POLICE    HAD
                   SUFFICIENT PROBABLE CAUSE TO PLACE THE
                   APPELLANT IN THE STATE POLICE CRUISER
                   AND   TRANSPORT   HIM   FOR   CHEMICAL
                   TESTING[?]

Appellant’s brief at 4-5.

      Our scope and standard for reviewing an order denying a motion to

suppress is as follows:



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              We are limited to determining whether the lower
              court’s factual findings are supported by the record
              and whether the legal conclusions drawn therefrom
              are correct. We may consider the evidence of the
              witnesses offered by the Commonwealth, as verdict
              winner, and only so much of the evidence presented
              by defense that is not contradicted when examined
              in the context of the record as a whole. We are
              bound by facts supported by the record and may
              reverse only if the legal conclusions reached by the
              court were erroneous.

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006).

                                         I.

     First,    appellant   contends    that   the   suppression      court   erred   in

determining that the initial stop of his vehicle was lawful. He contends that

the troopers lacked probable cause to conclude that a vehicle code violation

was occurring.

              In Pennsylvania, the authority that addresses the
              requisite cause for a traffic stop is statutory and is
              found at 75 Pa.C.S.A. § 6308(b), which provides:

              (b)   Authority of police officer.--Whenever
                    a police officer is engaged in a
                    systematic program of checking vehicles
                    or drivers or 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.




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          75 Pa.C.S. § 6308(b).        In Commonwealth v.
          Feczko, 10 A.3d 1285 (Pa.Super.2010) (en banc),
          this Court, consistent with our Supreme Court’s
          clarification of constitutional principles under the
          Fourth Amendment and Article I, Section 8 of the
          Pennsylvania Constitution, stated with respect to
          § 6308(b):

               In light of our Supreme Court’s
               interpretation of the current language of
               Section 6308(b), we are compelled to
               conclude that the standards concerning
               the quantum of cause necessary for an
               officer to stop a vehicle in this
               Commonwealth            are        settled;
               notwithstanding any prior diversity on
               the issue among panels of this Court.
               Traffic stops based on a reasonable
               suspicion: either of criminal activity or a
               violation of the Motor Vehicle Code under
               the authority of Section 6308(b) must
               serve a stated investigatory purpose.
               (footnote and citation omitted).

               ....

               Mere reasonable suspicion will not justify
               a vehicle stop when the driver’s
               detention cannot serve an investigatory
               purpose relevant to the suspected
               violation.  In such an instance, “it is
               encumbent [sic] upon the officer to
               articulate specific facts possessed by
               him, at the time of the questioned stop,
               which would provide probable cause
               to believe that the vehicle or the
               driver was in violation of some
               provision       of       the      Code.”
               [Commonwealth v.] Gleason [567 Pa.
               111], 785 A.2d [983,] 989 [(Pa.2001)]
               (citation omitted) [superseded by
               statute, Act of Sept. 30, 2003, P.L. 120,
               No. 24, § 17 (amending 75 Pa.C.S.A.
               § 6308(b))].


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            Id. at 1290–1291 (emphasis added in Gleason).
            Accordingly, when 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.

Commonwealth v. Salter, 121 A.3d 987, 992-993 (Pa.Super. 2015)

(emphasis in original).

      In this case, Trooper Cialella testified that he stopped appellant’s

vehicle because he observed appellant driving recklessly.         75 Pa.C.S.A.

§ 3736 provides:

            Reckless driving.        Any person who drives any
            vehicle in willful or wanton disregard for the safety of
            persons or property is guilty of reckless driving.

      Appellant argues that doing donuts does not constitute “reckless

driving.”   We disagree.     Trooper Cialella testified that by doing donuts,

appellant was “a reckless danger to himself” and that “[h]e could have

flipped the vehicle.” (Transcript of proceedings, 5/16/14 at 18.) We agree

that operating one’s motor vehicle in such a manner as to intentionally lose

control of the vehicle, causing it to lose traction and repeatedly spin in

circles, constitutes reckless driving.




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      Based on the record of the suppression hearing, we conclude

Trooper Cialella was able to articulate specific facts possessed by him, at the

time of the questioned stop, which supported that he had probable cause to

conclude that appellant was in violation of Section 3736.      Accordingly, we

find that the traffic stop of appellant’s vehicle was legal.

                                       II.

      Next, appellant contends once he was placed in handcuffs, he was

under arrest and any questioning under those circumstances should have

been preceded by Miranda warnings.           Appellant argues that all evidence

obtained after his arrest should have been suppressed.

                   Statements      made       during       custodial
            interrogation are presumptively involuntary, unless
            the accused is first advised of [his] Miranda rights.
            Custodial interrogation is questioning initiated by law
            enforcement officers after a person has been taken
            into custody or otherwise deprived of [his] freedom
            of action in any significant way. . . .           Thus,
            [i]nterrogation occurs where the police should know
            that their words or actions are reasonably likely to
            elicit an incriminating response from the suspect.
            [I]n evaluating whether Miranda warnings were
            necessary, a court must consider the totality of the
            circumstances. . . .

Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008) (en banc)

(citations and quotation marks omitted).

      Not every time an individual is placed in handcuffs is the functional

equivalent of an arrest. See Commonwealth v. Rosas, 875 A.2d 341, 348

(Pa.Super. 2005) (“[P]olice officers may handcuff individuals during an



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investigative detention.”); Commonwealth v. Guillespie, 745 A.2d 654,

660-661 (Pa.Super. 2000). It is not the subjective view of the police officer

that controls in determining whether an individual is in custody; rather, it is

an objective test, i.e., viewed in the light of the reasonable impression

conveyed to the person subjected to the seizure rather than the strictly

subjective   view    of   the   officers   or   the   persons   being   seized.

Commonwealth v. Douglass, 539 A.2d 412, 419 (Pa.Super. 1988).               An

arrest is an act that indicates an intention to take a person into custody or

that subjects the person to the will and control of the person making the

arrest. Commonwealth v. Lovette, 450 A.2d 975, 978 (Pa. 1982).

             In assessing whether a detention is too long in
             duration to be justified as an investigative stop, we
             consider it appropriate to examine whether the
             police diligently pursued a means of investigation
             that was likely to confirm or dispel their suspicions
             quickly, during which time it was necessary to detain
             the [appellees]. A court making this assessment
             should take care to consider whether the police are
             acting in a swiftly developing situation, and in such
             cases the court should not indulge in unrealistic
             second guessing.

Commonwealth v. Mayo, 496 A.2d 824, 826 (Pa.Super. 1985).

      During an investigative detention, a suspect may legally be placed in

handcuffs in order for the police to maintain control and safety for all

involved. “It is well-established that ‘when an officer detains a vehicle for a

violation of a traffic law, it is inherently reasonable that he or she be

concerned with safety and, as a result, may order the occupants out of the



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vehicle to alight from the car.’” Commonwealth v. Rosa, 734 A.2d 412,

414 (Pa.Super. 1999). Further, for their safety, police officers may handcuff

individuals during an investigative detention.      Guillespie, 745 A.2d at

660-661 (act of handcuffing suspects during investigatory detention was

merely part and parcel of ensuring the safe detaining of individuals during

the lawful Terry4 stop and did not constitute an arrest).

        Here, Trooper Cialella testified that he considered the encounter to be

a “high risk” stop.      After the troopers activated their overhead lights,

appellant ignored the troopers and continued to drive to a dark and isolated

location even though there were places to pull over on the side of Golden

Lane.    According to Trooper Cialella, the troopers grew increasingly more

concerned for their safety as the appellant continued to fail to respond to

their signal to stop and began to wave his hands out the window in some

sort of undiscernible signal to the troopers.    After the stop, the troopers

found a large knife on appellant. He was then handcuffed.

        We agree with the suppression court that placing appellant in

handcuffs during the detention was lawful and did not constitute an arrest.

                                        III.

        In his final issue, appellant contends that the suppression court erred

in determining that Trooper Cialella had sufficient probable cause to place

appellant in the police cruiser and transport him for chemical testing.


4
    Terry v. Ohio, 392 U.S. 1 (1968).


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Appellant claims that police cannot request chemical testing pursuant to

75 Pa.C.S.A. § 1547 for an alcohol-based DUI based solely on the smell of

alcohol.   Commonwealth v. Rosko, 509 A.2d 1289 (Pa.Super. 1986).

Appellant contends that the only basis for the transport for chemical testing

was the faint smell on appellant’s breath. He contends that there were no

other indicia of impairment, such as slurred speech, staggering gait, or

glassy bloodshot eyes, which gave the troopers probable cause to arrest

him.

       In order for an individual to be placed under arrest and transported for

chemical testing, an officer must have probable cause to believe the driver

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

Commonwealth v. Angel, 946 A.2d 115, 118 (Pa.Super. 2008) (en banc).

             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.

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa.Super. 2005),

appeal denied, 920 A.2d 831 (Pa. 2007).          “Probable cause justifying a

warrantless arrest is determined by the ‘totality of the circumstances.’” Id.

“[P]robable cause does not involve certainties, but rather ‘the factual and

practical considerations of everyday life on which reasonable and prudent

[persons] act.’”    Id.    Further, “a police officer may utilize both his



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experience and personal observations to render an opinion as to whether a

person is intoxicated.”   Commonwealth v. Kelley, 652 A.2d 378, 382

(Pa.Super. 1994), citing Commonwealth v. Bowser, 624 A.2d 125

(Pa.Super. 1993).

      Here, the trial court found, based on the totality of the circumstances,

that Trooper Cialella had the quantum of evidence required to support the

probable cause standard to arrest appellant for DUI. We agree with the trial

court. Trooper Cialella testified that he observed appellant driving recklessly

at 3:30 a.m., doing donuts in the church parking lot, that appellant did not

immediately pull his vehicle over in response to the trooper’s signals, and

that he was waving his hands out the window as he was driving.

Trooper Cialella    smelled   alcohol   on   appellant’s   breath.       When

Trooper Cialella asked appellant if he was drinking, appellant admitted that

he had a few drinks. Based upon the foregoing, we find there was probable

cause to arrest appellant for DUI under the totality of the circumstances.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/7/2016




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