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Com. v. Mitchell, C. ( 2016 )


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  • J-S67036-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    CORY MITCHELL
    Appellant                 No. 193 EDA 2016
    Appeal from the Judgment of Sentence December 10, 2015
    In the Court of Common Pleas of Montgomery County
    Criminal Division at No(s): CP-46-CR-0000634-2013
    BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
    MEMORANDUM BY STEVENS, P.J.E.:                 FILED SEPTEMBER 12, 2016
    Appellant Cory Mitchell appeals from the Judgment of Sentence
    entered on December 10, 2015, in the Court of Common Pleas of
    Montgomery County, which, sitting as finder of fact in a non-jury trial, found
    Appellant guilty of five DUI charges arising out of a single incident.1
    Appellant contends the suppression court erroneously determined officers
    had probable cause to arrest him. Following a careful review, we affirm.
    The trial court aptly has set forth the facts derived from the officers’
    suppression hearing testimony as follows:
    ____________________________________________
    1
    75 Pa.C.S.A. §§ 3802(a)(1), (c), (d)(1)(i), (d)(1)(iii), and (d)(3),
    respectively.
    *Former Justice specially assigned to the Superior Court.
    J-S67036-16
    On July 20, 2012, Montgomery Township Patrol Officer
    Jake Beebe was involved in a motor vehicle accident with
    [Appellant]. Hatfield Township Police Department was contacted
    to conduct a nonpartisan investigation of the accident. Hatfield
    Township Patrol Officer Jefferey[2] Richardson conducted an
    investigation and determined that Officer Beebe was at fault for
    the accident.
    Montgomery Township Patrol Officer David Dunlap, a 28
    year veteran with the Police Department, also responded to the
    scene of the accident. Upon speaking with [Appellant], Officer
    Dunlap immediately noticed his slurred speech and the odor of
    alcohol on his breath. Officer Dunlap asked [Appellant] if he had
    been drinking.       [Appellant] admitted that he previously
    consumed three beers and that he finished his last beer about
    forty-five minutes prior to the accident.
    Next, Officer Dunlap requested that [Appellant] perform
    field sobriety tests. Officer Dunlap gave [Appellant] instructions
    on how to perform five different field sobriety tests. After each
    set of instructions, [Appellant] performed the test to the best of
    his ability. [Appellant] passed an alphabet test. [Appellant]
    failed a numerical countdown test by failing to following [sic]
    instructions.     [Appellant] also failed a Horizontal Gaze
    Nystagmus test (“HGN”), a walk and turn test and a one leg
    stand test. Subsequently, Officer Dunlap placed [Appellant]
    under arrest for DUI and transported [Appellant] to Lansdale
    Hospital for a blood test.[3]
    On October 7, 2014, [Appellant] filed the present Motion to
    Suppress. On December 5, 2014, this Court began a bifurcated
    hearing to decide the motion. The hearing was concluded on
    March 23, 2015.
    Trial Court Order Sur: Suppression, filed 4/16/2015, at 1-2.
    ____________________________________________
    2
    The suppression court also spells Officer Richardson’s first name “Jeffery”
    in suppression order, see infra.
    3
    Appellant’s BAC was .18 and the presence of THC (the abbreviation for
    Tetrahydrocannbinol, the active ingredient in hashish and marijuana) also
    was detected therein. N.T. Sentencing, 12/10/15, at 5.
    -2-
    J-S67036-16
    Based on the aforementioned testimony, the trial court denied
    Appellant’s pre-trial suppression motion, and after waiving his right to a jury
    trial, Appellant proceeded to a waiver trial based on stipulated facts on July
    10, 2015. The trial court convicted Appellant of the offenses 
    indicated supra
    and sentenced him to an aggregate term of ninety (90) days to five (5)
    years in prison.4     This timely, counseled appeal followed, and all Pa.R.A.P.
    1925 requirements have been met. In his appellate brief, Appellant raises
    the following issue for our review:
    Whether the suppression court committed an error of law and/or
    abused its discretion in denying Appellant[‘s] [] motion to
    suppress his arrest where the Commonwealth’s evidence failed
    to establish probable cause for officers to believe that Appellant
    [] was in violation of 3802 of the Motor Vehicle Code.
    Brief for Appellant at 5.
    This Court’s well-settled standard of review for challenges to the denial
    of a suppression motion is as follows:
    [An appellate court's] 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, [the appellate court
    ____________________________________________
    4
    The parties agreed that all of the charges merged for sentencing purposes
    with Count 5, DUI: Controlled Substances, 75 Pa.C.S.A. § 3802(d)(3). N.T.
    Sentencing, 12/10/15, at 5.
    -3-
    J-S67036-16
    is] bound by [those] findings and may reverse only if the court's
    legal conclusions are erroneous. Where ... the appeal of the
    determination of the suppression court turns on allegations of
    legal error, 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 [ ]
    plenary review.
    Commonwealth v. Jones, 
    121 A.3d 524
    , 526–27 (Pa.Super. 2015),
    reargument denied (Sept. 30, 2015), appeal denied, 
    135 A.3d 584
    (Pa.
    2016) (citation omitted) (brackets in original).         In addition, our scope of
    review from a suppression ruling is limited to the evidentiary record that was
    created at the suppression hearing. In re L.J., 
    622 Pa. 126
    , 
    79 A.3d 1073
    ,
    1087 (2013).      Moreover, our standard of review is highly deferential with
    respect     to   the   suppression   court's   factual   findings   and   credibility
    determinations which are within its sole province. Commonwealth v.
    Shabezz, 
    129 A.3d 529
    , 532 (Pa.Super. 2015).
    Under constitutional jurisprudence, there are three categories of
    interactions between police and a citizen.
    The first of these is a “mere encounter” (or request for
    information) which need not be supported by any level of
    suspicion, but carries no official compulsion to stop or to
    respond. The second, an “investigative detention” must be
    supported by a reasonable suspicion; it subjects a suspect to a
    stop and a period of detention, but does not involve such
    coercive conditions as to constitute the functional equivalent of
    an arrest. Finally, an arrest or “custodial detention” must be
    supported by probable cause.
    Commonwealth v. Fleet, 
    114 A.3d 840
    , 845 (Pa.Super. 2015) (citation
    omitted).
    -4-
    J-S67036-16
    The relevant inquiry herein is whether Officer Dunlap had probable
    cause to arrest Appellant for DUI. “Both the United States and Pennsylvania
    Constitutions protect citizens against unreasonable searches and seizures.
    U.S. Const. Amend. IV; Pa. Const. Art. I, § 8. To be constitutionally valid,
    an arrest must be based on probable cause.” Commonwealth v. Smith,
    
    979 A.2d 913
    , 916 (Pa.Super. 2009) (citation omitted), appeal denied, 
    993 A.2d 901
      (Pa.   2010).   Probable   cause   exists   where   the   facts   and
    circumstances within a police officer’s knowledge are based upon reasonably
    trustworthy information and are sufficient to warrant one of reasonable
    caution in the belief that the suspect has committed or is committing a
    crime. In determining whether probable cause exists, this Court applies a
    totality of the circumstances test.     Commonwealth v. Delvalle, 
    74 A.3d 1081
    , 1085 (Pa.Super. 2013).       “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.”
    Commonwealth v. Thompson, 
    604 Pa. 198
    , 203, 
    985 A.2d 928
    , 931
    (2009) (internal quotation marks and citations omitted, emphasis in
    original).
    At the suppression hearing, Officer Beebe testified that as he was
    making a U-turn to pursue a vehicle with an equipment violation, a second
    vehicle collided with him and struck his bumper from behind.                   N.T.
    Suppression, 12/5/14, at 6.     He and his partner, Officer Andrew Benner,
    -5-
    J-S67036-16
    initially approached Appellant, the driver of the second vehicle, to discern
    whether Appellant had been injured. 
    Id. at 7.5
    Officer Dunlap testified that in his capacity as a police officer with the
    Montgomery Township Police Department for approximately thirty years, he
    had been involved in approximately five hundred to six hundred incidents
    involving an individual under the influence of drugs or alcohol. 
    Id. at 21-22.
    He had training in field sobriety testing and Horizontal Gaze Nystagmus
    (HGN) testing as well.        
    Id. at 23.
          Upon his arrival at the scene, Officer
    Dunlap was informed by Officer Benner that he may wish to speak with
    Appellant as it appeared to Officer Benner Appellant had been drinking. 
    Id. at 52,
    62. Officer Dunlap approached Appellant to discuss the circumstances
    surrounding the motor vehicle accident and “immediately detected an odor
    of alcoholic beverage on his breath when talking to him” and noticed his
    speech was “a little slurred.”        
    Id. at 27-28.
         When Officer Dunlap asked
    Appellant if he had been drinking, the latter admitted he had and indicated
    he had “maybe three beers earlier” the last of which he had consumed about
    forty-five minutes before the accident. 
    Id. at 29.
    Based upon Appellant’s
    admission, Officer Dunlap asked Appellant to perform various field sobriety
    tests. Id.
    ____________________________________________
    5
    This encounter was captured by the patrol vehicle’s camcorder and played
    for the suppression court. 
    Id. at 8,
    13.
    -6-
    J-S67036-16
    While   Appellant    was   able   to    recite   the   alphabet,   he   did   so
    “deliberately” and “methodically.” When asked to count backward from 69
    to 53, Appellant did not follow Officer Dunlap’s instructions and instead
    counted back to 52. 
    Id. at 30-31.
    Officer Dunlap performed three tests as
    part of the HGN after each of which he detected nystagmus, which indicated
    to him “there’s alcohol involved and possible impairment.”           
    Id. at 31-35.
    When Officer Dunlap had Appellant complete the “walk-and-turn-test,” he
    noticed Appellant had trouble maintaining his balance.               
    Id. at 35-37.
    Finally, Officer Dunlap remarked that Appellant had difficulty completing the
    “one-leg stand test.”     
    Id. at 38-40.
         Based upon the entire interaction he
    had with Appellant, Officer Dunlap opined Appellant was under the influence
    of alcohol and could not drive safely and placed him under arrest for DUI.
    
    Id. at 40-41,
    61. Officer Dunlap then transported Appellant to Lansdale
    Hospital so a chemical test could be performed. 
    Id. at 40-41.
    In support of its finding that Officer Dunlap testified credibly and had
    probable cause to believe Appellant was driving under the influence of
    alcohol and to subsequently arrest him, the suppression court reasoned as
    follows:
    Here, Officer Dunlap spoke with [Appellant] and
    immediately noticed the odor of alcohol on his breath. By way of
    [Appellant’s] admission, Officer Dunlap learned that [Appellant]
    had recently consumed alcohol.            Officer Dunlap then
    administered five different field sobriety tests, which assisted
    him in determining whether [Appellant] was intoxicated. Officer
    Dunlap observed signs of impairment on four of the five field
    sobriety tests. Based on his extensive training and experience,
    -7-
    J-S67036-16
    his observations of impairment and [Appellant’s] admission,
    Officer Dunlap determined that [Appellant] was incapable of
    safely driving due to the influence of alcohol. Subsequently,
    Officer Dunlap arrested [Appellant] for DUI.
    [Appellant] asks this [c]ourt to place particular weight on
    the observations, or lack thereof, of a police officer who was
    unavailable to testify at this hearing. In support of this position,
    [Appellant] submitted the accident report created by Officer
    Jeffrey     Richardson.   Officer   Richardson’s    report,   which
    determined the cause of the accident, contains no mention of
    [Appellant] being intoxicated. After this incident, Officer
    Richardson retired and cannot be located. Accordingly, Officer
    Richardson did not testify at the hearing. [Appellant] argues
    that due to Officer Richardson’s absence, this [c]ourt should
    infer that he would have testified that [Appellant] was not
    intoxicated. This [c]ourt believes that such an inference has
    little effect on the inquiry of whether probable cause did or did
    not exist. Therefore, this [c]ourt finds Officer Dunlap credibly
    had probable cause to believe that [Appellant] was DUI and the
    arrest of [Appellant] was lawful.
    Trial Court Order Sur: Suppression, filed 3/4/16, at 3.
    Appellant maintains that “[w]hile arguably, standing alone, Officer
    Dunlap’s claimed observations could be sufficient to establish probable
    cause, closer examination of those observations and the conclusions drawn
    therefrom demonstrates that they are not reliable.” Appellant also states it
    is undisputed that he “was involved in an accident that was caused entirely
    by the negligence of Montgomery Township rookie officer Beebe, and that
    Appellant [ ] admitted to drinking three beers earlier in the day.” Brief for
    Appellant at 14.   Appellant proceeds to challenge the credibility of Officer
    Dunlap’s observations, viewing them in a light most favorable to him, and
    making much of the fact that Officer Richardson ultimately determined the
    motor vehicle accident had not been his fault. 
    Id. at 14-18.
    -8-
    J-S67036-16
    Upon our review of the record, we conclude the suppression court's
    finding that police had probable cause to arrest Appellant is supported by the
    record and that the totality of the circumstances, including Officer Dunlap's
    observations viewed in the light of his experience, support its legal
    conclusions.    Officer Dunlap initially approached Appellant to ascertain his
    condition after a motor vehicle accident, at which time he discerned the odor
    of alcoholic beverage on his person and observed behavior indicative of one
    driving under the influence of alcohol.          Officer Dunlap confirmed his belief
    upon performing the aforementioned field sobriety tests which provided him
    with   probable     cause    subsequently      to   place   Appellant   under   arrest.
    Accordingly, Appellant's issue affords him no relief.6
    ____________________________________________
    6
    Appellant filed with this Court a post-submission communication pursuant
    to Pa.R.A.P. 2501(b) wherein he argues the United States Supreme Court’s
    recent decision in Birchfield v. North Dakota, 
    136 S. Ct. 2160
    , 
    195 L. Ed. 2d 560
    (filed June 23, 2016) is instructive herein. Therein, three cases were
    consolidated for argument to determine whether a motorist may be deemed
    to have consented to submit to a blood test on pain of committing a criminal
    offense. The Supreme Court ultimately held that while no warrant is required
    for a police officer to administer a field breathalyzer test to a suspected
    drunk driver, either a search warrant or a recognized exception thereto is
    necessary before blood may be drawn for the purpose of chemical testing.
    However, the Birchfield Court reaffirmed the constitutionality of an officer’s
    decision to administer field sobriety tests which, in turn, provide probable
    cause for the officer to arrest the driver after he or she administers those
    tests if he or she finds the driver has failed them. In the matter sub judice,
    the basis of Appellant’s appeal is not that his consent to a blood test had
    been coerced by a police officer’s warnings provided pursuant to Implied
    Consent Law, but rather that Officer Dunlap lacked probable cause to arrest
    him. In fact, Appellant acquiesced at the stipulated bench trial that based
    (Footnote Continued Next Page)
    -9-
    J-S67036-16
    Judgment of Sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/12/2016
    _______________________
    (Footnote Continued)
    upon the test results, there was "[n]o argument as to his guilt. . . .” N.T.
    Trial, 7/10/15, at 4.
    - 10 -
    J-S67036-16
    - 11 -
    

Document Info

Docket Number: 193 EDA 2016

Filed Date: 9/12/2016

Precedential Status: Non-Precedential

Modified Date: 12/13/2024