J-S18023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

KELLEN PATRICK PHELAN

                            Appellant                    No. 1358 EDA 2016


           Appeal from the Judgment of Sentence dated April 5, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003469-2015

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                              FILED AUGUST 07, 2017

        Appellant Kellen Patrick Phelan appeals from the judgment of sentence

imposed after he was convicted of driving under the influence (DUI) —

general impairment, exceeding the maximum speed limit, and disregarding a

traffic lane.1 Appellant challenges the denial of his motion to suppress and

the sufficiency of the evidence to prove DUI. We affirm.

        The trial court set forth the facts of this case as follows:

        On December 19, 2007 at approximately 2:00 a.m., Corporal
        John T. Malone of the Pennsylvania State Police was on patrol in
        full uniform in a marked State Police unit traveling southbound
        on Route 202 in Concord Township, Delaware County,
        Pennsylvania. Corporal Malone began following a vehicle in front
        of him that he believed was exceeding the speed limit. [Corporal
        Malone saw the vehicle drift to the left two times, with at least
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. §§ 3802(a)(1), 3362, and 3309(1).
J-S18023-17


       half of the vehicle entering the left lane. N.T., 12/9/15, at 20.]
       Corporal Malone, a twenty-two-year veteran of the Pennsylvania
       State Police, clocked the vehicle traveling 65 miles per hour in a
       properly posted 45 miles per hour zone.          The vehicle was
       followed for 0.7 miles and the speed was clocked for over 0.3
       miles with a certified speedometer. After following the vehicle
       for 0.7 miles, Corporal Malone pulled the vehicle over for
       speeding.

             Corporal Malone approached the vehicle to request the
       driver provide identification and registration information.
       Immediately upon arriving at the vehicle, Corporal Malone
       smelled a strong odor of alcohol coming from the vehicle.
       Corporal Malone asked [Appellant] where he was coming from
       and [Appellant] responded “McKenzie[’s] Brew House.”[2]
       Corporal Malone then asked [Appellant] if he had consumed any
       alcoholic beverages that evening and [Appellant] did not answer
       that question.

             Corporal Malone then asked [Appellant] if he would exit
       the vehicle. While speaking with [Appellant], Corporal Malone
       detected a strong odor of an alcoholic beverage emitting from
       [Appellant]’s breath and person. [Appellant’s eyes were red and
       his speech was slightly slow and slurred. N.T., 12/9/15, at 57,
       61.] Corporal Malone decided to further investigate to determine
       if [Appellant] was safe to operate a motor vehicle.

             Corporal Malone asked [Appellant] to submit to field
       sobriety tests. [Appellant] refused. Corporal Malone then asked
       [Appellant] to submit to a preliminary breath test (PBT). Again,
       [Appellant] refused. Corporal Malone determined based upon his
       observations of [Appellant] and his vast experience that
       [Appellant] could not safely operate a motor vehicle on the
       roadway and placed [Appellant] into custody. Corporal Malone
       then advised [Appellant] of the Implied Consent Law and [placed
       him under arrest] for suspicion of DUI. [Appellant] refused to
       allow his blood to be drawn and signed his refusal.




____________________________________________
2
  Corporal Malone testified that McKenzie’s Brew House is a restaurant and
microbrewery that sells alcoholic beverages. N.T., 12/9/15, at 24.


                                           -2-
J-S18023-17


Trial Ct. Op., 7/12/16, at 2-3. Appellant was charged with DUI, exceeding

the maximum speed limit, disregarding a traffic lane, and careless driving.

      Prior to trial, Appellant filed a motion to suppress, alleging that the

police lacked reasonable suspicion and/or probable cause to stop him and

lacked probable cause to arrest him, and thus that all evidence and

statements obtained as a result of the stop and arrest must be suppressed.

The trial court held a suppression hearing on December 9, 2015, at which

Corporal Malone was the only witness who testified.          A Mobile Video

Recording (MVR) from the night of the incident was also introduced into

evidence.   On January 20, 2016, the trial court issued an order denying

Appellant’s motion to suppress and setting forth findings of fact and

conclusions of law.

      The court concluded that the initial stop and the subsequent arrest

were lawful, stating:

            Corporal Malone had reasonable suspicion that [Appellant]
      was violating the motor vehicle code. Corporal Malone clocked
      [Appellant]’s vehicle at 65 miles per hour in a 45 mile per hour
      zone for the statutory requisite distance of 3 tenths of a mile
      with a certified speedometer. The initial stop was therefore
      lawful.

            Upon approaching the vehicle, Corporal Malone smelled a
      strong odor of an alcoholic beverage coming from inside the
      motor vehicle. Upon exiting the vehicle Corporal Malone smelled
      a strong odor of an alcoholic beverage coming from [Appellant].
      [Appellant] told Corporal Malone that he was coming from
      M[]cKenzie’s Brew House. [Appellant] refused to participate in
      any field sobriety tests or to take the PBT. Those observations
      provided Corporal Malone with probable cause to arrest
      [Appellant] for driving under the influence of alcohol.

                                    -3-
J-S18023-17



Order, 1/20/16, at 9.

      On February 4, 2016, the trial court held a non-jury trial.                 The

Commonwealth introduced, and the court admitted, the record from the

suppression     hearing.      The   Commonwealth      also   presented    additional

testimony from Corporal Malone.         On February 8, 2016, the court found

Appellant    guilty   of   DUI,   exceeding   the   maximum    speed     limit,   and

disregarding a traffic lane. The court found Appellant not guilty of careless

driving.

      On April 5, 2016, the trial court sentenced Appellant to 72 hours to 6

months of confinement for DUI, a $35 fine for exceeding the maximum

speed limit, and a $25 fine for disregarding a traffic lane. On May 4, 2016,

Appellant filed a timely notice of appeal.

      Appellant raises the following issues, as stated in his brief:

      Whether the trial court’s findings were unsupported by the
      record as to the trial court’s denial of [Appellant]’s Motion to
      Suppress which alleges that no motor vehicle violation occurred
      and the stop of [Appellant]’s vehicle lacked reasonable suspicion
      and/or probable cause.

      Was the evidence sufficient to convict [Appellant] of the crime of
      Driving Under the Influence of Alcohol or a Controlled Substance
      – General Impairment[,] 75 Pa.C.S. § 3802(a)(1)[,] as to the
      elements of:

           i) imbib[ing] a sufficient amount of alcohol; and

           ii) whether [Appellant] was incapable of safe driving?

Appellant’s Brief at 4 (some formatting; footnote omitted).


                                        -4-
J-S18023-17


                                     Suppression

       With regard to Appellant’s suppression claim, this Court applies the

following standard of review:

       Our standard of review in addressing a challenge to the denial of
       a suppression motion is limited to determining whether the
       suppression court’s factual findings are supported by the record
       and whether the legal conclusions drawn from those facts are
       correct.   Because the Commonwealth prevailed before the
       suppression court, we may consider only the evidence of the
       Commonwealth and so much of the evidence for the defense as
       remains uncontradicted when read in the context of the record
       as a whole. Where the suppression court’s factual findings are
       supported by the record, we are bound by these findings and
       may reverse only if the court’s legal conclusions are erroneous.
       The suppression court’s legal conclusions are not binding on an
       appellate court, whose duty it is to determine if the suppression
       court properly applied the law to the facts.           Thus, the
       conclusions of law of the courts below are subject to our plenary
       review.

       Moreover, appellate courts are limited to reviewing only the
       evidence presented at the suppression hearing when examining
       a ruling on a pre-trial motion to suppress.

Commonwealth v. Freeman, 150 A.3d 32, 34-35 (Pa. Super. 2016)

(citation omitted), appeal denied, No. 853 MAL 2016 (Pa. May 15, 2017).

       Appellant argues that the trial court erred in denying his motion to

suppress because the initial stop was unlawful.3 Specifically, he claims that

the trial court erroneously applied the reasonable suspicion standard, rather

than the probable cause standard, to the stop, and that the Commonwealth
____________________________________________
3
  In this appeal, Appellant has abandoned the argument, which he raised in
the trial court, that the evidence Corporal Malone obtained as a result of the
initial stop still did not provide probable cause for Corporal Malone to arrest
him. Appellant’s Brief at 4 n.1.


                                           -5-
J-S18023-17


failed to establish probable cause that he was speeding.       See Appellant’s

Brief at 20-29.    Appellant asserts that the trial court’s findings of fact are

inconsistent with the MVR from the night of the incident, which shows

Corporal Malone accelerating to catch up to Appellant. Appellant contends

that the MVR proves that Corporal Malone did not maintain a constant speed

for three tenths of a mile while clocking Appellant. Id. at 24. In addition,

Appellant argues that the Commonwealth failed to prove that Corporal

Malone had reasonable suspicion to stop him for disregarding a traffic lane

and therefore lacked grounds to investigate whether he was driving under

the influence of alcohol. See id. at 29-31.

      The Commonwealth concedes, “the trial court incorrectly applied a

reasonable suspicion standard to evaluate the trooper’s ability to stop a car

for the Motor Vehicle Code violations of speeding and failing to maintain a

single lane.”     Commonwealth’s Brief at 14.     The Commonwealth argues,

however, that this Court may affirm on grounds different from those of the

trial court, and urges us to hold that Corporal Malone had probable cause to

stop Appellant.

      We agree with the parties that the trial court erroneously concluded

that Corporal Malone needed only reasonable suspicion to stop Appellant for

speeding.   “[W]hen considering whether reasonable suspicion or probable

cause is required constitutionally to make a vehicle stop, the nature of the




                                      -6-
J-S18023-17


violation has to be considered.” Commonwealth v. Salter, 121 A.3d 987,

993 (Pa. Super. 2015).

       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 [i]ncumbent
       . . . 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.

Freeman, 150 A.3d at 35 (internal quotation marks and citations omitted,

emphasis in original).

       If a vehicle is stopped for       speeding, the officer must possess
       probable cause to stop the        vehicle. This is so because when a
       vehicle is stopped, nothing       more can be determined as to the
       speed of the vehicle when it      was observed while traveling upon a
       highway.

Salter, 121 A.3d at 993. Thus, the trial court erred in concluding that only

reasonable suspicion was necessary to stop Appellant for speeding.

       Although the trial court applied the incorrect standard for the stop, “if

the record supports the result reached by the suppression court, we may

affirm on any ground.”        Commonwealth v. Brown, 64 A.3d 1101, 1105

n.3 (Pa. Super.) (citation omitted), appeal denied, 70 A.3d 1096 (Pa.

2013). Thus, we can affirm the trial court’s denial of Appellant’s motion to

suppress if we conclude that Corporal Malone had probable cause to stop

Appellant for speeding. See id.4

____________________________________________
4
   The trial court did not evaluate whether Corporal Malone had probable
cause to stop Appellant for disregarding a traffic lane or reasonable suspicion
(Footnote Continued Next Page)

                                           -7-
J-S18023-17


         To determine whether probable cause exists, we must consider
         whether 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.

Commonwealth v. Ibrahim, 127 A.3d 819, 824 (Pa. Super. 2015)

(citation and internal quotation marks omitted), appeal denied, 138 A.3d 3

(Pa. 2016). “[P]robable cause does not require certainty, but rather exists

when criminality is one reasonable inference, not necessarily even the most

likely inference.” Salter, 121 A.3d at 994 (citation omitted).

         In determining whether a person is exceeding the maximum speed

limit:

         The rate of speed of any vehicle may be timed on any highway
         by a police officer using a motor vehicle equipped with a
         speedometer. In ascertaining the speed of a vehicle by the use
         of a speedometer, the speed shall be timed for a distance of not
         less than three-tenths of a mile.

75 Pa.C.S. § 3368(a). In Commonwealth v. Whitmyer, 668 A.2d 1113

(Pa. 1995), the Supreme Court held that a police officer lacked probable

cause to stop the defendant for driving at an unsafe speed because, among

other reasons, the officer observed the defendant for less than the three-

tenths of a mile distance set forth in Section 3368(a). Id. at 1117.5

                       _______________________
(Footnote Continued)
to stop Appellant for DUI, and, in light of our holding below, it is not
necessary for us to do so in this appeal.
5
  Since our Supreme Court’s holding in Whitmyer, the Vehicle Code
provision setting forth the requirements a police officer must meet in order
(Footnote Continued Next Page)

                                            -8-
J-S18023-17


      Here, the trial court found “Corporal Malone clocked [Appellant’s]

vehicle traveling 65 miles per hour in a properly posted 45 mile per hour

zone. The vehicle was followed for 0.7 miles and the speed was clocked for

over 0.3 miles with a certified speedometer.”       Order, 1/20/16, Findings of

Fact ¶ 4.       Corporal Malone testified that he clocked Appellant for

approximately seven tenths of a mile before the MVR was activated.

Specifically, he testified that he began clocking Appellant at 65 miles per

hour approximately two-tenths of a mile north of Smith Bridge Road, that

Appellant accelerated when they reached Naamans Creek Road, and that the

distance between Smith Bridge Road and Naamans Creek Road is seven-

tenths of a mile. N.T., 12/9/15, at 20, 43. Corporal Malone testified that

the MVR was not activated until “right before” Naamans Creek Road. Id. at

40. It does not follow, as Appellant argues, that because Corporal Malone’s

vehicle accelerated after the MVR was activated, Corporal Malone did not

maintain a constant speed before that time.           Because the trial court’s

findings of fact are supported by the record, we are bound by them.        See

Freeman, 150 A.3d at 35.             We hold that Corporal Malone had probable

                       _______________________
(Footnote Continued)
to initiate a stop of a vehicle has changed. Specifically, the former version
of 75 Pa.C.S. § 6308(b) required a police officer have “articulable and
reasonable grounds to suspect a violation” of the Vehicle Code to effectuate
a vehicle stop.       The present version requires a police officer have
“reasonable suspicion” that a violation of the Vehicle Code is occurring or
had occurred in order to initiate a stop. Despite the change in language, this
Court has continued to hold that a police officer must have probable cause to
pull over a vehicle for speeding. See Salter, 121 A.3d at 993.


                                            -9-
J-S18023-17


cause to stop Appellant for exceeding the maximum speed limit, and we

affirm the trial court’s denial of Appellant’s motion to dismiss.6

                       Sufficiency of the Evidence (DUI)

       In his second issue, Appellant contends that the evidence was

insufficient to support his conviction of driving under the influence – general

impairment, 75 Pa.C.S. § 3802(a)(1).7

       A claim challenging the sufficiency of the evidence is a question
       of law. 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. When reviewing a sufficiency claim the court
       is required to view the evidence in the light most favorable to
       the verdict winner giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence.

       As a reviewing court, we may not weigh the evidence or
       substitute our judgment for that of the fact-finder, who is free to
       believe all, part, or none of the evidence.

Commonwealth v. Chambers, 157 A.3d 508, 512 (Pa Super. 2017)

(ellipses, citations, and some formatting omitted).

       Subsection 3802(a)(1) of the Vehicle Code provides: “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
____________________________________________
6
  Because Corporal Malone had probable cause for the stop based on
Appellant’s speeding, we need not resolve Appellant’s alternative argument
that the corporal lacked reasonable grounds to stop Appellant for driving
across the lane line.
7
  Appellant does not challenge the sufficiency of the evidence with regard to
exceeding the maximum speed limit or disregarding a traffic lane.



                                          - 10 -
J-S18023-17


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). “Thus,

the Commonwealth must . . . prove: (1) that defendant was operating a

motor vehicle, (2) after imbibing a sufficient amount of alcohol such that the

individual is rendered incapable of safely driving.”      Commonwealth v.

Kerry, 906 A.2d 1237, 1241 (Pa. Super. 2006). Appellant challenges only

the second element.

      This Court has explained that Section 3802(a)(1) “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.” Kerry, 906 A.2d at 1241 (citation omitted).

          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.

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

      In its opinion, the trial court concluded that the evidence was sufficient

to prove that Appellant had imbibed a sufficient amount of alcohol such that

he was rendered incapable of safely driving. Trial Ct. Op. at 8-9. Corporal

Malone testified that Appellant was speeding and drifted out of his lane two

times. Appellant admitted that he was coming from a microbrewery when


                                    - 11 -
J-S18023-17


Corporal Malone stopped his car, and Corporal Malone testified that

Appellant’s eyes were red and his speech was slow and slurred, and that

Appellant smelled of alcohol, did not respond when asked whether he had

consumed any alcoholic beverages, and refused to take field sobriety tests

or submit to a preliminary breath test.8           Viewing the evidence in the light

most favorable to the Commonwealth, we agree with the trial court that the

evidence was sufficient to prove a violation of Subsection 3802(a)(1).

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2017




____________________________________________
8
    75 Pa.C.S. § 1547(e) provides:

        In any summary proceeding or criminal proceeding in which the
        defendant is charged with a violation of section 3802 or any
        other violation of this title arising out of the same action, the fact
        that the defendant refused to submit to chemical testing . . .
        may be introduced in evidence along with other testimony
        concerning the circumstances of the refusal. No presumptions
        shall arise from this evidence but it may be considered along
        with other factors concerning the charge.


                                          - 12 -
