Com. v. Armstrong, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES RICHARD ARMSTRONG
Appellant No. 871 MDA 2016
Appeal from the Judgment of Sentence Dated April 25, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002999-2015
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 14, 2017
Appellant, James Richard Armstrong, appeals from the judgment of
sentence of 3-23 months’ incarceration followed by 3 years’ probation after
his conviction at a stipulated bench trial for driving under the influence
(“DUI”) of a controlled substance that impaired his ability to drive (second
offense), of a controlled substance under Schedule I of the Controlled
Substance, Drug, Device and Cosmetic Act (second offense), and of a
metabolite of a controlled substance (second offense)1; he also was
convicted for violations of traffic laws limiting driving on the left side of a
road, requiring drivers to stop at stop signs, and requiring the use of turn
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*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S. §§ 3802(d)(2), 3802(d)(1)(i), and 3802(d)(1)(iii), respectively.
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signals.2 With this appeal, appellate counsel has filed a petition to withdraw
and an Anders3 brief, stating that the appeal is wholly frivolous. After
careful review, we affirm and grant counsel’s petition to withdraw.
The facts underlying this appeal are as follows. On May 15, 2015,
Officer Cramer was dispatched by the Southern Regional Police Department
after receiving a report at about 11:00 A.M. of a reckless driver in a cream-
colored Toyota Celica on Danville Pike in Pequea Township, Lancaster
County. N.T. at 10-13; Stipulation, 4/25/16, at 1 ¶ 2a. After locating the
reported vehicle, Officer Cramer noticed that it was speeding and swerving
abruptly and that it failed to use a turn signal, failed to stop at a stop sign,
and crossed the yellow line at least eight times.
Officer Cramer stopped the Toyota and approached the vehicle. N.T.
at 13-15. The officer then observed that the driver, Appellant, had
bloodshot, glassy eyes, and slurred speech. Appellant “fumbled” through
papers, gave the officer an expired registration and insurance card, and then
rummaged through papers again before locating the correct registration and
insurance card. Throughout this interaction, Appellant “was rambling on and
on and on.” Id. at 15.
____________________________________________
2
75 Pa.C.S. §§ 3306(a)(1), 3323(b), and 3334(b), respectively.
3
Anders v. California, 386 U.S. 738 (1967).
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Officer Cramer asked Appellant to exit the vehicle, and Appellant
swayed as he stood. N.T. at 16. The car door hit Appellant as he exited.
Appellant then told the officer that he had consumed Soma and Xanax. Id.4
Officer Cramer instructed Appellant to do a number of field sobriety
tests, all of which he failed. N.T. at 17-25. The field sobriety tests were
conducted on land with a “very very slight slant.” Id. at 34. Officer Cramer
then arrested Appellant and transported him to Lancaster Regional Medical
Center for a blood test. Id. at 25.
At the hospital, Officer Cramer and Appellant were met by Officer
Redinger, who read the O’Connell warnings5 to Appellant before his blood
was drawn. Ex. Commonwealth-1 (DL-26 form); N.T. at 26-28. Officer
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4
Soma is a muscle relaxer and sedative that has significant impairing effects
on a person’s ability to operate a motor vehicle. Stipulation, 4/25/16, at 4 ¶
16. Xanax is a central nervous system depressant used to treat anxiety and
depression. Its side effects include drowsiness, fatigue, and dizziness, and it
may result in significantly impaired driving. Id. at ¶ 10.
5
Commonwealth of Pa., Dep’t of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).
[T]he court [in O’Connell] held that when a motorist is
requested to submit to chemical testing under the provisions of
the Pennsylvania Implied Consent Law, 75 Pa.C.S. § 1547, the
law enforcement officer making the request has a duty to explain
to the motorist that the rights provided by the United States
Supreme Court decision in Miranda v. Arizona, 384 U.S. 436 . .
. (1966), are inapplicable to a request for chemical testing under
the Implied Consent Law.
Commonwealth v. Scott, 684 A.2d 539, 541 n.1 (Pa. 1996).
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Redinger also gave Appellant Miranda warnings6 prior to interviewing him.
Ex. Commonwealth-2 (Miranda warnings waiver form); N.T. at 49.
On May 30, 2015, the National Medical Services Laboratory (“NMS”) in
Willow Grove, Pennsylvania, received a sealed package containing
Appellant’s blood. Stipulation, 4/25/16, at 3 ¶¶ 6, 8. On June 11, 2015, Dr.
Edward Barbieri, an expert in pharmacology, toxicology, and forensic
toxicology, tested Appellant’s blood for controlled substances. Ex.
Commonwealth-5 (Dr. Barbieri’s curriculum vitae); Stipulation, 4/25/16, at 3
¶¶ 7-9. Dr. Barbieri issued a report detailing that his analysis of Appellant’s
blood found Xanax, marijuana,7 THC,8 Soma, and a Soma metabolite. Ex.
Commonwealth-6 (NMS lab report); Stipulation, 4/25/16, at 3 ¶¶ 9a-e.
As of the date of his arrest, Appellant was already serving probation
for a DUI conviction9 in York County from 2012.10 On May 26, 2015, the
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6
Miranda v. Arizona, 384 U.S. 436 (1966).
7
Marijuana was a Schedule I hallucinogen that had not yet been legalized
for medicinal usage in Pennsylvania as of the date of the events at issue.
Stipulation, 4/25/16, at 4 ¶¶ 11-12.
8
THC is a marijuana metabolite. Stipulation, 4/25/16, at 3 ¶ 9c.
9
The conviction was for driving after “imbibing a sufficient amount of alcohol
such that the alcohol concentration in the individual’s blood or breath is
0.16% or higher within two hours after the individual has driven,” in
violation of 75 Pa.C.S. § 3802(c) (first offense).
10
Because Appellant had violated his York County probation three times, he
was still on probation in May 2015 for the 2012 offense. The records from
(Footnote Continued Next Page)
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York County court issued a detainer for Appellant. On August 25, 2015, the
York County court sentenced Appellant to confinement for time served for
violating his probation by driving under the influence on the May 15, 2015
occasion that is subject to the charges at issue here. N.T. at 3.
In this case, trial counsel filed an omnibus pretrial motion on
October 9, 2015, that included a suppression motion challenging the
probable cause to arrest Appellant. A suppression hearing was held on
April 25, 2016. At the beginning of the hearing, trial counsel requested a
continuance, because Appellant had “an investigation open with the York
County Probation, as he was violated for this particular case, he believes
wrongfully.” N.T. at 3. Trial counsel asked that proceedings in this action
be continued until that investigation was complete. Id. at 4. When the trial
court asked if “an investigation of York County’s Probation’s Department
[would] have an impact in this case,” trial counsel responded that “the only
real issue is [whether Appellant] has time credit” in the current case, if the
York County investigation resolved in his favor. Id. The Commonwealth
opposed the continuance request. Id. at 6. The trial court denied the
_______________________
(Footnote Continued)
the York County case are not in the certified record, but this Court can take
judicial notice of the proceedings reflected in the York County docket sheets
at Docket No. CP-67-CR-0000588-2013. See Spanier v. Freeh, 95 A.3d
342, 348 (Pa. Super. 2014); Commonwealth v. Wrecks, 931 A.2d 717,
722 (Pa. Super. 2007); Commonwealth v. Greer, 866 A.2d 433, 435 (Pa.
Super. 2005). Pa. R. Evid. 201 (judicial notice of adjudicative facts).
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continuance, but said it would revisit the time-credit issue at sentencing if
Appellant were convicted. Id.During the hearing, Officer Cramer was asked — among other
questions — how Appellant performed on the finger-to-nose field sobriety
test, and the officer asked to review his report. N.T. at 22. Appellant’s
counsel objected, but the trial court permitted Officer Cramer to refresh his
recollection with the report.
During the suppression hearing, Appellant also testified. He stated
that he told Officer Cramer, “I have anxiety really bad, sorry for being really
anxious, jittery.” N.T. at 55. He also testified that he had taken medication
“at least three hours prior to being stop[ped] by the officer.” Id. at 56. He
further testified that he had informed Officer Cramer, “I may have problems
with doing [the field sobriety tests], but I can do them,” and that he had
lower back problems that made it “uncomfortable” to do the field tests. Id.
at 57-58. Appellant stated that “he signed the form allowing the blood draw
and the Miranda form after the blood had already been drawn,” and not
before the blood was taken. Id. at 63.
The trial court denied Appellant’s suppression motion. Following a
stipulated bench trial, Appellant was convicted of all counts. N.T. at 82, 93.
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At his sentencing hearing later that same day,11 Appellant claimed, “in
regards to sentencing, there is an issue going on currently right now with
another county. I was already in prison for this crime through a different
county, which is why we were asking for that time to work this out.” N.T. at
94. He said that his trial counsel “tried to get in contact” with York County.
Id. After prompting from the trial court, trial counsel further explained:
[Appellant] does have an order saying that he should have been
released from supervision in York County July of 2014. The
order came down in May of 2015 stating that he has completed
community service as directed on July 2014, and that all the
supervision fees would be waived, and that the court costs were
placed on York County.
So our contention is that he should receive the jail credit for the
time that he was incarcerated since he didn’t have bail on this
case while he was incarcerated in York County with a detainer
for allegedly violating. . . . So we would ask the Court to
consider allowing him to have credit dating back to his date of
incarceration which was May 28.
Id. at 94-95. Appellant added that he believed that he should receive credit
beginning on May 21, 2015. Id. at 95. In response, the Commonwealth
stated that it had just become aware of this issue that morning, but it
“would obviously object to any sort of double dipping with the [parole
violation].” Id. The trial court then deferred the commencement of
Appellant’s sentence to 8:00 P.M. on Friday, May 31, 2016, “and that should
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11
Appellant did not request a presentence investigation report.
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give you, Counsel, an opportunity to clarify the situation, and get back to me
and we can straighten out any time credit issue at that time.” Id. at 96.
Appellant did not file any post-trial or post-sentence motions. This
timely direct appeal with appointed appellate counsel followed.
On August 29, 2016, appellate counsel sent a letter to Appellant,
informing him that she intended to file a petition for leave to withdraw.
Appellate counsel filed an Anders Brief and a petition to withdraw on the
same day. Appellant did not file a pro se response. On September 2, 2016,
the Commonwealth sent a letter to this Court stating that it did not intend to
file a responsive brief.12
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (internal citation omitted). An Anders brief shall comply with the
requirements set forth by the Supreme Court of Pennsylvania in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009):
[W]e hold that in the Anders brief that accompanies court-
appointed counsel’s petition to withdraw, counsel must: (1)
provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record,
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12
The trial court did not file an opinion.
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controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel seeking to withdraw on direct appeal
must meet the following obligations to his or her client:
Counsel must also provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client of his right to: (1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points
that the appellant deems worthy of the court[‘]s attention in the
Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “Once counsel has satisfied the
above requirements, it is then this Court’s duty to conduct its own review of
the trial court’s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally,
“this Court must conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnotes and citations omitted).
In this appeal, we observe that appellate counsel’s August 29, 2016
correspondence to Appellant provided a copy of the Anders Brief to
Appellant and advised Appellant of his right either to retain new counsel or
to proceed pro se on appeal to raise any points he deemed worthy of the
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court’s attention. Further, appellate counsel’s Anders Brief, at 5-6,
complies with prevailing law in that counsel has provided a procedural and
factual summary of the case with references to the record. Appellate
counsel additionally advances relevant portions of the record that arguably
support Appellant’s claims on appeal. Id. at 8-18. Ultimately, appellate
counsel cites her reasons and “conclusion that the instant appeal is wholly
frivolous.” Id. at 7. Counsel has complied with the requirements of
Santiago and Orellana. We therefore proceed to conduct an independent
review to ascertain whether the appeal is indeed wholly frivolous.
The Anders Brief raises eleven issues for review on appeal:
[1. Appellant] raises several issues in his letter to counsel that
can essentially be grouped together as a credibility issue. . . .
[2. Appellant] makes a claim in his letter to Counsel that he
was “profiled” as a previous DUI offender by the Officer after the
Officer ran his information during the traffic stop. . . .
[3. Appellant] next complains that he was not read his
Miranda warnings as soon as he was arrested. . . .
[4. Appellant] next claims that he asked the Officer during the
traffic stop if he had his dash camera on, and the Officer told
him that he did not. . . .
[5. Appellant] next asserts that following the traffic stop, the
blood draw at the hospital and being processed at the police
station, he was released. [Appellant] believes, by law, he should
have been held until his “pre-trial.” . . .
[6.] Next [Appellant] claims that he could not have been
intoxicated on the date in question because his car was released
back to him later the same day. . . .
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[7. Appellant] claims his “rights were violated” [because]
there were “mistakes” on the “report.” . . .
[8. Appellant] claims that the Officer amended “reports” and
added charges. . . .
[9. Appellant] believes that Officer Cramer should not have
been permitted to refresh his recollection with his report while
testifying during the suppression hearing. . . .
[10. Appellant] claims that he served double time for this case.
..
[11.] Trial Counsel filed a Suppression Motion on behalf of
[Appellant,] challeng[ing] the probable cause to arrest
[Appellant].
Anders Brief at 8-16.
Appellant’s first issue challenges the trial court’s finding that “the
testimony of Officer Cramer [was] entirely credible and that of [Appellant]
lack[ed] any credibility.” N.T. at 82.
[Appellant] raises several specific instances where he believes
the Officers were not telling the truth. They include:
1. Officer Cramer testified that the car door hit
[Appellant] as he exited the vehicle, but [Appellant]
contends that did not happen. [N.T. at] 16, 56.
2. Officer Cramer testified the surface that the
field sobriety tests were conducted on was a “very
very slight slant”, but [Appellant] testified that it was
“hilly”. [N.T. at] 34, 58.
3. Officer Cramer testified that [Appellant] did not
state he had any disabilities prior to performing the
field sobriety tests, but [Appellant] testified he
informed the officer he had neck and back issues.
[N.T. at] 56-57.
4. Officer Redinger testified that he gave
[Appellant] his Miranda warnings prior to speaking to
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him, but [Appellant] testified that he wasn’t given
Miranda warning until after he was questioned. [N.T.
at] 49, 62.
5. Officer Redinger testified that he read
[Appellant] his O’Connell warnings before his blood
was drawn, but [Appellant] testified that he was only
read them after his blood was drawn. [N.T. at] 26-
28, 62-63.
Anders Brief at 8-9. All of the challenged statements were made during the
suppression hearing.
“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.” Commonwealth v. Bomar, 826 A.2d
831, 842 (Pa. 2003), cert. denied, 540 U.S. 1115 (2004). As an appellate
court, we “defer to the credibility determinations of the trial court, which had
the opportunity to observe the demeanor of witnesses and to hear them
testify.” Id. at 843. Thus, in the current action, we must defer to the trial
court’s credibility determinations adverse to Appellant and to those factual
findings that are supported by testimony in the record. The findings at issue
here have record support. See N.T. at 16, 26-28, 34, 49. Hence,
Appellant’s first issue has no merit.
Appellant’s next claim is that he was “profiled.” Anders Brief at 10.
However, this issue was not preserved in the lower court, and there is
nothing in the certified record supporting this allegation. See Pa.R.A.P.
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302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal”); see also Pa.R.A.P. 1921 (“The original
papers and exhibits filed in the lower court, paper copies of legal papers filed
with the prothonotary by means of electronic filing, the transcript of
proceedings, if any, and a certified copy of the docket entries prepared by
the clerk of the lower court shall constitute the record on appeal in all
cases”). Therefore, Appellant’s second issue is waived.
Appellant’s third claim is “that he was not read his Miranda warnings
as soon as he was arrested.” Anders Brief at 11.
Miranda warnings are necessary any time a defendant is subject
to a custodial interrogation. As the United States Supreme Court
explained, “the Miranda safeguards come into play whenever a
person in custody is subjected to either express questioning or
its functional equivalent.” Rhode Island v. Innis, 446 U.S.
291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006), cert. denied, 552
U.S. 939 (2007). However, the warnings are required only prior to
interrogation. Thus, in Commonwealth v. Ventura, 975 A.2d 1128, 1137
(Pa. Super. 2008), appeal denied, 987 A.2d 161 (Pa. 2009), we held that
where a defendant in custody who was not yet being interrogated made
statements prior to receiving Miranda warnings, there was no Miranda
violation because the warnings were not yet required.
Here, Appellant bases his argument under Miranda on the theory that
the police needed to inform him of his Miranda rights immediately upon his
arrest, but that contention is incorrect. Police need only to give Miranda
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warnings if and when the defendant is interrogated. See Gaul, 912 A.2d at
255; Ventura, 975 A.2d at 1137. Appellant was in custody after his arrest,
but he was not under interrogation at the time he claims he should have
been given his Miranda warnings. See N.T. 25. Accordingly, Appellant’s
third issue raised on appeal is meritless.
Appellant next contends “that during all traffic stops, there is a law
requiring officers to have their dash cameras on.” Anders Brief at 11. No
party has cited any such law to us, and, after careful review, we agree with
counsel that this issue is without merit.
Appellant’s fifth assertion is that he “should have been held until his
‘pre-trial.’” Anders Brief at 12. It is not clear whether Appellant’s reference
to his “pre-trial” refers to his preliminary hearing, his pre-trial/suppression
hearing, or some other stage in the pretrial process.13 If an issue raised on
appeal is too vague for the court to identify and address it, then it is waived.
See Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006), appeal
denied, 919 A.2d 956 (Pa. 2007); Commonwealth v. Butler, 756 A.2d 55,
57 (Pa. Super. 2000) (“When a court has to guess what issues an appellant
is appealing, that is not enough for meaningful review”), aff’d, 812 A.2d 631(Pa. 2002). We conclude that because we cannot identify the exact nature
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13
Appellate counsel was also “not sure what [Appellant] means by a ‘pre-
trial.’” Anders Brief at 12.
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of Appellant’s fifth issue, we cannot provide meaningful review, and this
issue therefore is waived.
Next, Appellant argues that “he could not have been intoxicated on the
date in question because his car was released back to him later the same
day.” Anders Brief at 12. After a thorough review, we find nothing in the
record regarding the release of Appellant’s automobile. We are precluded
from reviewing facts outside the certified record. See Pa.R.A.P. 1921;
Commonwealth v. Williams, 715 A.2d 1101, 1103 (Pa. 1998) (“appellate
Courts are limited to considering only those facts that have been duly
certified in the record on appeal”). Appellant does not direct this Court to
any support for his sixth issue, and we therefore conclude that Appellant is
not entitled to relief on this issue.
Appellant’s seventh allegation is that “his ‘rights were violated,’”
because, in the police report, “his name and address were not in the correct
area, the make of his car was inaccurate and the box for ‘request lab
services’ was not checked ‘yes.’” Anders Brief at 13. According to
Pa.R.Crim.P. 109:
A defendant shall not be discharged nor shall a case be
dismissed because of a defect in the form or content of a
complaint, citation, summons, or warrant, or a defect in the
procedures of these rules, unless the defendant raises the defect
before the conclusion of the trial in a summary case or before
the conclusion of the preliminary hearing in a court case, and the
defect is prejudicial to the rights of the defendant.
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In the current matter, the defects that Appellant avers were not raised at
the preliminary hearing, and Appellant fails to show that the defects were in
any way prejudicial. Appellate counsel asserts that “the defects are certainly
not prejudicial to [Appellant’s] rights.” Anders Brief at 13. Like counsel, we
see no basis to conclude that Appellant was prejudiced by the handful of
typographical and formatting errors that he raises. Thus, this seventh issue
is meritless.
Appellant’s eighth issue is that the complaint against him should not
have been amended to add charges. Anders Brief at 14. Initially, Appellant
was charged only with driving under the influence of a controlled substance
that impaired his ability to drive (second offense).14 The information was
later amended to include the other two DUI counts and the three traffic
violations of which Appellant was convicted.
[W]hen presented with a question concerning the propriety of an
amendment, we consider:
[w]hether the crimes specified in the original
indictment or information involve the same basic
elements and evolved out of the same factual
situation as the crimes specified in the amended
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14
The charge was under 75 Pa.C.S. § 3802(d)(2), which provides:
An individual may not drive, operate or be in actual physical
control of the movement of a vehicle under any of the following
circumstances: . . . The individual is under the influence of a
drug or combination of drugs to a degree which impairs the
individual’s ability to safely drive, operate or be in actual
physical control of the movement of the vehicle.
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indictment or information. If so, then the defendant
is deemed to have been placed on notice regarding
his alleged criminal conduct. If, however, the
amended provision alleges a different set of events,
or the elements or defenses to the amended crime
are materially different from the elements or
defenses to the crime originally charged, such that
the defendant would be prejudiced by the change,
then the amendment is not permitted.
Commonwealth v. Beck, 78 A.3d 656, 660 (Pa. Super. 2013) (citations
omitted). Here, the additional DUI counts and the traffic violations all arose
from the same factual situation that led to Appellant’s arrest. The additional
DUI counts merely added that Appellant was driving under the influence of a
Schedule I controlled substance and its metabolite.15 The traffic charges
merely reflected Appellant’s impaired driving. As Appellant’s counsel points
out, the amendments did not add anything significantly new: “[t]he
Affidavits of Probable Cause are identical; no different set of events is
alleged.” Anders Brief at 15. Appellant has not shown prejudice resulting
from these amendments, and we discern none. Appellant therefore is
entitled to no relief on his eighth issue.
Appellant suggests that Officer Cramer should not have been
permitted to refresh his recollection with his report while testifying during
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15
See 75 Pa.C.S. §§ 3802(d)(1)(i), (iii) (prohibiting operation of a vehicle if
“There is in the individual’s blood any amount of a: (i) Schedule I controlled
substance, as defined in . . . The Controlled Substance, Drug, Device and
Cosmetic Act . . . or (iii) metabolite of a substance under subparagraph (i)
. . .”).
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the suppression hearing. Anders Brief at 15 (citing N.T. at 22). Pursuant
to Pa. R. Evid. 612(a): “A witness may use a writing or other item to refresh
memory for the purpose of testifying while testifying, or before testifying.”
Appellant’s premise is thereby negated by our Rules of Evidence, and this
issue is without merit.
Next, Appellant argues that he “served double time for this case”
because “he already served 92 days while in York County on this case.”
Anders Brief at 15. However, Appellant did not serve time in York County
for the current matter. The time he served in York County was for a
violation of his probation stemming from the separate DUI that had occurred
in York County more than two years earlier.16 Appellant was still serving
probation for his York County DUI when he committed his Lancaster County
DUI. The Lancaster County DUI may have triggered the revocation of his
probation in York County, but the time he served in York County was for his
York County offense, not this one. Thus, Appellant did not earn credit for
time served while incarcerated in York County, and Appellant’s penultimate
challenge is meritless.
Finally, Appellant challenges the trial court’s denial of his suppression
motion. Anders Brief at 16-18. Specifically, Appellant claims that Officer
Cramer had insufficient probable cause to arrest him and that all evidence
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16
See Docket No. CP-67-CR-0000588-2013.
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acquired subsequent to his arrest therefore should be suppressed, including
the results of his blood test. Id. at 16. “The applicable standard for
determining probable cause calls for a totality of circumstances analysis, not
a mechanical consideration of specific factors.” Commonwealth v. Salter,
121 A.3d 987, 995 (Pa. Super. 2015). Here, the police arrested Appellant
after receiving a report of reckless driving, and Officer Cramer actually
witnessed Appellant speeding, swerving, repeatedly crossing a double yellow
line, failing to use a turn signal, and failing to stop at a stop sign. N.T. at
10-13; Stipulation, 4/25/16, at 1 ¶ 2a. Officer Cramer also observed
Appellant’s bloodshot and glassy eyes, slurred speech, lack of coordination,
and confusion. N.T. at 14-16. Finally, Appellant himself admitted to Officer
Cramer that he had taken Soma and Xanax. Id. at 16. The totality of these
circumstances was more than sufficient to create probable cause to arrest
Appellant. Thus, the trial court properly denied Appellant’s motion to
suppress the evidence gathered after the arrest.
Based on the foregoing, we find all of Appellant’s claims meritless
and/or waived. In addition, we have reviewed the certified record consistent
with Flowers, 113 A.3d at 1250, and have discovered no additional
arguably meritorious issues. Accordingly, we grant appellate counsel’s
petition to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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