J-A26038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RAYMOND JOSEPH KRAYNAK

                            Appellant                No. 2235 MDA 2013


           Appeal from the Judgment of Sentence December 2, 2013
           In the Court of Common Pleas of Northumberland County
              Criminal Division at No(s): CP-49-CR-0000954-2012


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED NOVEMBER 14, 2014

        Raymond Kraynak         (“Appellant”) appeals from the   judgment   of

sentence entered in the Northumberland County Court of Common Pleas

following his conviction for Driving Under the Influence of Alcohol1 (“DUI”),

and challenges the trial court’s grading of the offense as well as its ruling

denying his motion to suppress. After careful review, we affirm.

        We summarize the straightforward factual and procedural history as

follows.    At approximately 11:00 p.m. on May 26, 2012, Appellant was

driving northbound on Route 61 in Coal Township, Northumberland County,

when he entered into an area where police were conducting a sobriety

checkpoint.     Appellant, a medical doctor, claims not to have seen the
____________________________________________


1
    75 Pa.C.S. § 3802(a)(1).
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multiple 4-foot-by-4-foot reflective road signs announcing the checkpoint.

Instead, Appellant claims that he thought he had arrived upon an accident

scene. Instead of entering the checkpoint, Appellant parked his car, exited

the vehicle, and walked over to where the police were interacting with

motorists passing through the checkpoint in order to offer aid as a physician,

if necessary. Appellant’s subsequent interactions with the police caused the

police to conduct two field sobriety tests, both of which Appellant failed.

After he refused chemical testing, police arrested Appellant and charged him

with DUI.

      The trial court conducted a bench trial on August 30, 2013, and found

defendant guilty of DUI graded as a misdemeanor of the first degree. On

December 2, 2013, the trial court sentenced Appellant to 6 months of

intermediate punishment. Appellant timely appealed.

      Appellant raises the following questions for our review:

      A. Did the trial court commit an abuse of discretion in grading
      the offense as a misdemeanor of the first degree?

      B. Did the trial court commit an abuse of discretion in refusing
      to afford [Appellant] a trial by jury after it concluded that the
      offense would be graded a misdemeanor of the first degree?

      C. Did the trial court commit an abuse of discretion in holding
      that the roadblock was legal because the roadblock did not
      comply with applicable requirements contained in case law?

      D. Did the trial court commit an abuse of discretion in ignoring
      the applicability of the PennDOT D.U.I. manual?

      E. Did the trial court commit an abuse of discretion and an error
      of law in determining that the checkpoint at issue “substantially
      complied” with all relevant requirements?


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       F. Did the trial court commit an abuse of discretion in convicting
       [Appellant] of driving under the influence because the
       Commonwealth did not sustain its burden of proof?

Appellant’s Brief, p. 5 (all capitals removed). For ease of disposition, we will

address these claims out of order.

1. The Checkpoint/Roadblock Claims

       Appellant’s claims C, D, & E make related arguments regarding the

legality and validity of the roadblock involved in this matter and whether the

police complied with the Tarbert/Blouse2 checkpoint guidelines.                   See

Appellant’s Brief, pp. 5 (Claims C, D & E), 17-41. These claims do not afford

Appellant relief.

       The facts of this matter do not implicate the Tarbert/Blouse

guidelines for checkpoint administration because the police did not stop

Appellant at the roadblock.          Instead of entering the checkpoint, Appellant

himself voluntarily stopped his own car, approached the police, and offered

to help.    Appellant explained that he did this because he thought he had

stopped at an accident scene at which his medical expertise could be of use.

Because     Appellant    did   not    suspect    he   was   approaching   a   sobriety

checkpoint, he could not have been in fear of being seized at that

checkpoint.      Further, he was not actually seized as a result of the

checkpoint.     Instead, by parking and exiting his vehicle, approaching the

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2
  Commonwealth v. Tarbert, 535 A.2d 1035 (Pa.1987); Commonwealth
v. Blouse, 611 A.2d 1177 (Pa.1992).



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police, and initiating a conversation, Appellant initiated a mere encounter

with police. He subjected himself to the sobriety investigation necessitated

by the police’s knowledge that he drove his vehicle to the scene together

with his visible signs of intoxication, to wit, weaving and staggering walk,

swaying standing gait, odor of alcohol, bloodshot eyes, flushed face, and

slurred speech.       See Commonwealth v. Ragan, 652 A.2d 925, 929

(Pa.Super.1995) (determining that where police have good reason to believe

a driver is intoxicated, the police are justified in requesting that the

individual submit to sobriety testing).          This voluntary mere encounter

initiated not by the police, but by Appellant himself, was independent of the

existence of the sobriety checkpoint.3           Accordingly, adherence to the

Tarbert/Blouse checkpoint guidelines is immaterial in this matter.

2.     Grading of Offense as a Misdemeanor of the First Degree &
       Right to Jury Trial.

       Next, Appellant makes the interrelated claims that the trial court erred

in grading the DUI as a misdemeanor of the first degree and by refusing to

____________________________________________


3
  Appellant argues that but for the roadblock, he would not have stopped.
This argument is unconvincing. Appellant’s testimony established that he
stopped voluntarily because he thought an accident had occurred. In other
words, Appellant intended stop even though he was mistaken about the
occurrence of an accident. Of course, if Appellant had been correct, and he
had approached an actual automobile accident, Appellant’s choice to stop
and offer assistance would still have subjected him to investigation and
possible arrest if the police determined he was intoxicated. See Ragan,
supra.




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allow Appellant a jury trial. See Appellant’s Brief, pp. 5 (Claims A & B), 16-

17.   These claims present questions of law; thus, the scope of review is

plenary, and the standard of review is de novo.          See Commonwealth v.

Arroyo, 991 A.2d 951, 955 (Pa.Super.2010).

       “The right to a jury trial exists when a defendant faces a charge which,

alone, could lead to imprisonment beyond six months. By contrast, there is

no jury trial right if an offense bears a maximum incarceration of six months

or less.” Commonwealth v. Harriott, 919 A.2d 234, 237 (Pa.Super.2007)

(citing   Commonwealth            v.   Kerry,    906   A.2d   1237,   1239,   1240

(Pa.Super.2006).

       The Vehicle Code provides:

       (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). The Vehicle Code grades a first offense violation of

section 3802(a)(1) as an ungraded misdemeanor punishable by up to 6

months of imprisonment. 75 Pa.C.S. § 3803(a)(1).4 Where a first offender
____________________________________________


4
  In fact, Section 3803(a) grades even a second offense as an ungraded
misdemeanor. See 75 Pa.C.S. § 3803(a)(1) (“An individual who violates
section 3802(a) (relating to driving under influence of alcohol or controlled
substance) and has no more than one prior offense commits a
misdemeanor for which the individual may be sentenced to a term of
imprisonment not more than six months and to pay a fine under section
(Footnote Continued Next Page)


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refuses chemical testing, the violation remains graded as an ungraded

misdemeanor punishable by up to 6 months’ imprisonment.                       75 Pa.C.S. §

3803(b)(2). Where a defendant with a prior DUI conviction refuses chemical

testing, the subsequent DUI/refusal charge is graded as a misdemeanor of

the first degree. 75 Pa.C.S. § 3803(b)(4). However, to the extent that the

Vehicle Code provides that certain violations of section 3802(a) are correctly

graded as misdemeanors of the first degree,5 this Court has determined that

the    Vehicle   Code’s     DUI    grading       provisions   still   limit   the   term    of

imprisonment possible to a maximum of 6 months’ incarceration.6                            See

Commonwealth v. Musau, 69 A.3d 754 (Pa.Super.2013).7                           Accordingly,
                       _______________________
(Footnote Continued)

3804 (relating to penalties).”) (emphasis provided). The grading for a
violation of section 3802(a) does not increase to a misdemeanor of the
second degree until the third violation. See 75 Pa.C.S. § 3803(a)(2) (“An
individual who violates section 3802(a) and has more than one prior
offense commits a misdemeanor of the second degree.”) (emphasis
provided).
5
    See 75 Pa.C.S. § 3803(b)(3), (4) & (5).
6
 Crimes classified as first-degree misdemeanors are ordinarily punishable by
up to five (5) years of imprisonment. See 18 Pa.C.S. § 106(b)(6); 18
Pa.C.S § 1104.
7
  We note that Pennsylvania’s Supreme Court currently holds the Musau
petition for allowance of appeal in abeyance pending its decision in
Commonwealth v. Mendez, 32 EAP 2013, in which the Supreme Court is
addressing the issue of whether “in upholding a sentence that exceeds the
statutory maximum explicitly set out in 75 Pa.C.S. § 3803, did not the
majority violate the rules of statutory construction in order to avoid what it
saw as ‘problematic consequences’ resulting from a straightforward
application of the statute?” See Commonwealth v. Mendez, 49 EAL 2013,
Order Granting Allocatur, 7/17/2013. However, this Court may not overrule
(Footnote Continued Next Page)


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J-A26038-14



regardless of the trial court’s grading of the offense, Appellant was never

exposed to a maximum possible term of incarceration exceeding 6 months,

and therefore was never entitled to a trial by jury. See Harriot, supra.

      Additionally, the Musau decision is distinguishable from the instant

matter in that it involved a repeat DUI offender who refused chemical

testing.   See Musau, 69 A.3d at 755-56.          The court in Musau therefore

appropriately graded the DUI in that matter as a misdemeanor of the first

degree. Id. at 758; see also 75 Pa.C.S. § 3803(b)(4). Here, despite the

fact that this was Appellant’s first DUI, the trial court granted the

Commonwealth’s motion to amend the information to grade the offense as a

misdemeanor of the first degree based on the decision in Musau. This was

error, which the trial court concedes. See 1925(a) Opinion, p. 7.

      Remand to re-grade this DUI, however, is not necessary. First, as the

trial court explained, Appellant suffered no sentencing prejudice from the

grading of the DUI as a misdemeanor of the first degree instead of an

ungraded misdemeanor because “the sentence actually imposed upon

[Appellant] was consistent with the grading of the offense as an ungraded

                       _______________________
(Footnote Continued)

another panel of the Superior Court, and Musau remains binding law. See
Commonwealth v. Beck, 78 A.3d 656, 659 (Pa.Super.2013); Marks v.
Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa.Super.2000) (despite the
Pennsylvania Supreme Court having granted a petition for allowance of
appeal, a decision remains precedential until it has been overturned by the
Pennsylvania Supreme Court).




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J-A26038-14



misdemeanor.” 1925(a) Opinion, p. 7. Additionally, no prejudice based on

an increased Prior Record Score (“PRS”) calculation will occur in the future

because a first DUI is excluded from a defendant’s PRS regardless of

grading.8    Thereafter, second or subsequent DUIs each count as one-point

offenses regardless of the DUI grading and regardless of the crime with

which the defendant then stands charged. Otherwise stated, only the

number, not the grading, of DUI convictions counts in future calculations of

PRS.

3. Sufficiency of the Evidence Claim

       Lastly, Appellant claims that the Commonwealth adduced insufficient

evidence to sustain his DUI conviction because there was no direct evidence

that Appellant was incapable of safely driving, no one saw Appellant driving,

and there was no evidence of the concentration of alcohol in Appellant’s

breath or blood. See Appellant’s Brief, pp. 5 (Claim F), 41-43. This claim

lacks merit.

       When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

       The standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
____________________________________________


8
  See Sentencing Guideline Analysis (7th Ed.), Pennsylvania Commission on
Sentencing, pp. 137-138 (“One Point Offenses. One point is added for each
prior conviction or adjudication for the following offenses: . . . Driving Under
the Influence of Alcohol or Controlled Substance, except for a first
lifetime conviction or adjudication.) (emphasis provided).



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     the light most favorable to the verdict winner, there is sufficient
     evidence to enable the fact-finder to find every element of the
     crime beyond a reasonable doubt. In applying [the above] test,
     we may not weigh the evidence and substitute our judgment for
     the fact-finder. In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence. Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [trier] of fact while passing upon the credibility of witnesses and
     the weight of the evidence produced, is free to believe all, part
     or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011).

     As previously stated, the Vehicle Code provides:

     (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).

     The types of evidence that the Commonwealth may proffer in a
     subsection 3802(a)(1) prosecution include but are not limited to,
     the following: the offender’s actions and behavior, including
     manner of driving and ability to pass field sobriety tests;
     demeanor, including toward the investigating officer; physical
     appearance, particularly bloodshot eyes and other physical signs
     of intoxication; odor of alcohol, and slurred speech. Blood
     alcohol level may be added to this list, although it is not
     necessary . . . The weight to be assigned these various types of

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J-A26038-14


       evidence presents a question for the fact-finder, who may rely
       on his or her experience, common sense, and/or expert
       testimony.     Regardless of the type of evidence that the
       Commonwealth proffers to support its case, the focus of
       subsection 3802(a)(1) remains on the inability of the individual
       to drive safely due to consumption of alcohol-not on a particular
       blood alcohol level.

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa.2009).                           Further,

“[u]nder Pennsylvania law, an eyewitness is not required to establish that a

defendant was driving, operating, or was in actual physical control of a

motor    vehicle.       The    Commonwealth        can   establish   through    wholly

circumstantial evidence that a defendant was driving, operating or in actual

physical control of a motor vehicle.”          Commonwealth v. Johnson, 833

A.2d 260, 263 (Pa.Super.2003).

       The trial court summarized the trial evidence regarding Appellant’s

arrest as follows:

              The Commonwealth offered the testimony of several
       officers who interacted with [Appellant] at the checkpoint. These
       officers have many years experience in detecting the signs of
       intoxication and all offered consistent testimony concerning their
       observations of [Appellant] at the roadblock. Officer Stephen
       Bennick was stationed in the roadblock such that he was the
       officer interacting with the motorists as they passed through the
       checkpoint. He was the first officer to observe [Appellant] after
       [Appellant] pulled his vehicle behind a marked police unit with its
       emergency lights activated, parked[,] got out of the driver’s side
       of the vehicle, walked around to the front of the vehicle and
       walked up the center of [the] road on the passing lines.[9] As
____________________________________________


9
  Despite Appellant’s claims that no one saw him driving, Officer Bennick
clearly and repeatedly testified that he observed Appellant’s vehicle park
behind a marked cruiser and that he then watched Appellant exit the vehicle
(Footnote Continued Next Page)


                                          - 10 -
J-A26038-14


      [Appellant] walked up the center of the road toward Officer
      Bennick, he was weaving and staggering. Once Officer Bennick
      began to speak to [Appellant], the officer noted the smell of
      alcohol on [Appellant’s] breath and observed that he had droopy,
      bloodshot eyes and was swaying. At that time, [Appellant]
      admitted to Officer Bennick that he had been drinking.

            After this contact, Officer Bennick turned [Appellant] over
      to Officer Matthew Henrich, who noted that [Appellant] had a
      strong odor of alcohol on his breath, his speech was slurred, and
      his face was flushed. Officer Henrich then conducted two field
      sobriety tests with [Appellant]. During both tests, [Appellant]
      failed to follow the officer’s instructions to wait until the
      demonstration of the test was completed before beginning the
      test himself. When [Appellant] attempted to complete the heel-
      to-toe test, there were gaps between his feet, he took twelve
      steps, instead of the instructed nine, and he stepped on his toes.
      [Appellant] then failed to perform the one-leg stand in
      accordance with the instructions given to him on his first
      attempt, raising his leg such that his thigh, and not his foot, was
      parallel to the ground. On his second attempt, the officer told
      him to stop the test because he was afraid [Appellant] would fall.
      Accordingly, [Appellant] failed both field sobriety tests
      administered to him.

            After being advised that he would be placed under arrest,
      [Appellant] became irate and agitated, requesting to speak to
      the checkpoint supervisor, Officer Ketchem, who also noted a
      strong odor of alcohol on [Appellant’s] breath along with slurred
      speech and swaying.

            All of these observations by experienced police officers of
      [Appellant’s] physical manifestations of intoxication established
      beyond a reasonable doubt [Appellant’s] inability to safely
      operate his vehicle due to impairment by alcohol prior to arriving
      at the checkpoint.

1925(a) Opinion, pp. 5-6.

                       _______________________
(Footnote Continued)

from the driver’s side before approaching.          See N.T. 8/30/2013, pp. 118-
121.



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J-A26038-14



      Viewed in the light most favorable to the Commonwealth as verdict

winner, this evidence was sufficient to convict Appellant of DUI in violation of

section 3802(a)(1).

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2014




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