Com. v. Anderson, A. ( 2023 )

J-A08037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARTHUR ANDRE ANDERSON :
:
Appellant : No. 375 WDA 2022
Appeal from the Judgment of Sentence Entered February 24, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001785-2021
BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 2, 2023
Arthur Andre Anderson (Anderson) appeals from the judgment of
sentence imposed following his bench conviction in the Court of Common Pleas
of Allegheny County (trial court) of several counts of Driving Under the
Influence (DUI) of Alcohol or a Controlled Substance and the summary offense
of failure to yield.1 Anderson challenges the trial court’s partial denial of his
motion to suppress that challenged the search of Anderson’s person and car
because it violated both the Fourth Amendment to the United States
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3802(d)(1), (d)(2), (d)(3), (a)(2), (a)(1) and § 3323(c). The
trial court found Anderson not guilty of three drug-related charges: person
not to possess a controlled substance, possession of marijuana and possession
of drug paraphernalia, 35 §§ 780-113(a)(16), (31) and (32).
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Constitution and Article I, Section 8 of the Pennsylvania Constitution. 2 We
affirm.
I.
This case arises from an August 24, 2020 incident where Police Officer
Jayme Spealman of the North Braddock Borough Police Department and her
partner, Officer Smerkar,3 observed Anderson’s vehicle fail to stop at a stop
sign at about 9:00 p.m. At the suppression hearing, Officer Spealman was
the only witness. She testified that while on patrol, she observed Anderson’s
car “blow through” a stop sign without yielding. (N.T. Suppression, 1/27/22,
at 6). The officers initiated a traffic stop and Officer Spealman observed
Anderson “making movements as if he was leaning over the seat trying to
conceal something.” (Id. at 7). Anderson then completely rolled through a
second stop sign before coming to a stop.
As Officer Spealman approached Anderson’s vehicle, he “was still
leaning over like he was either reaching for something, either trying to push
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2 The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution guarantee “the right of the people
to be secure in their persons, houses, papers, and possessions from
unreasonable searches and seizures.” Luczki, supra at 542. “To secure the
right of citizens to be free from unreasonable search and seizure, courts in
Pennsylvania require law enforcement officers to demonstrate ascending
levels of suspicion to justify their interactions with citizens to the extent those
interactions compromise individual liberty.” Id. (citation omitted).
3 Officer Smerkar’s first name is not apparent from the record.
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something or grab something . . . completely leaning over the seat.” (Id. at
8). She described Anderson’s movements as furtive and Officer Smerkar
withdrew his gun from his holster as he approached the passenger side of the
vehicle and issued commands. Because Anderson continued to move after
Officer Spealman directed him not to, she opened the car door and “asked him
to step out of the car, but there was also a weapon. I saw a knife in the
console . . . pocket of the door.” (Id. at 9). Officer Spealman testified that
she could smell alcohol emanating from Anderson’s person or from the vehicle
and she described his demeanor as “very agitated . . . [he] couldn’t stand still
. . . He kept moving away from the vehicle. He was very, very nervous as if
he was trying to divert our attention away from him. He was acting real, real
excited.” (Id. at 11). Because his window was closed and he could not hear
Officer Spealman’s request, Officer Spealman then opened the door to get Mr.
Anderson's attention, observing an “orange carpenter knife” in the door
pocket. (Id. at 15). Officer Spealman ordered him out of the car and he was
placed in the back of their police vehicle. As they were taking Anderson to
their vehicle, Officer Spealman smelled alcohol coming from his breath or from
inside his vehicle. The officers took his driver’s license, checked his
information and called for backup.
Back-up officers responded to the scene and Sergeant Larry Butler
conducted a pat-down of Anderson’s person, finding a small bag of marijuana
and two small baggies of suspected crack cocaine. During a search of
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Anderson’s vehicle, police recovered an orange carpenter knife from the
driver’s side console and a glassine pipe from the passenger side console.
Officer Spealman observed as another officer conducted a horizontal gaze
nystagmus (HGN) test, the field sobriety test, which Anderson failed. Officer
Spealman then arrested Anderson on suspicion of DUI and transported him to
a hospital for a blood draw. (Id. at 14). At the suppression hearing, Officer
Spealman opined that based on her interaction with and observation of
Anderson, coupled with her training and experience, he was impaired to an
extent that rendered him unable to safely operate a vehicle.
The trial court granted the suppression motion in part and denied it in
part. It denied the portion of the suppression motion related to the DUI
charges but suppressed evidence of the glass smoking device, the marijuana
and the cocaine. After Anderson waived his right to a jury trial, he
immediately proceeded to a bench trial and the parties’ stipulated to
incorporating the testimony from the suppression hearing, the affidavit of
probable cause, the police report and the results of Anderson’s blood test,
which showed a positive result for alcohol and cannabinoids with a blood
alcohol content of .092%. The trial court found Anderson guilty of the DUI
offenses and failure to yield at a stop sign and found him not guilty of the
drug-related offenses. It sentenced Anderson to attend a four-day DUI
alternative to jail program, followed by six months of probation. This timely
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appeal followed. Anderson and the trial court complied with Rule 1925. See
Pa.R.A.P. 1925(a)-(b).4
II.
While acknowledging that the initial traffic stop was legal, relying on
Rodriguez v. United States, 575 U.S. 348, 135 S. Ct. 1609 (2015),
Anderson contends that the trial court erred in denying his motion to suppress
the field sobriety test and blood draw underlying the DUI charges because of
the prolonged unlawful stop to investigate without the requisite reasonable
suspicion for possible drug charges, resulting in an unlawful seizure and
violating his rights under the Fourth Amendment and Article I, Section 8 of
the Pennsylvania Constitution.5 What Anderson appears to be arguing is that
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4
When reviewing an order denying a motion to suppress evidence,
[w]e may consider only the Commonwealth’s evidence 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
record supports the factual findings of the trial court, we are
bound by those facts and may reverse only if the legal conclusions
drawn therefrom are in error. An appellate court, of course, is not
bound by the suppression court’s conclusions of law. It is within
the suppression court’s sole province as factfinder to pass on the
credibility of witnesses and the weight to be given their testimony.
Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019) (citations
omitted).
5 The Fourth Amendment of the United States establishes the “right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, . . . ” Article I, Section 8 of the
Pennsylvania Constitution provides: “The people shall be secure in their
(Footnote Continued Next Page)
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even if the police officers had reasonable suspicion to conduct a field sobriety
test and a blood test to determine if he was driving under the influence,
because that determination was “delayed” by the drug investigation, he is
then entitled to have the results of the field sobriety test suppressed.
Rodriquez, however, offers no support for that proposition.
In Rodriguez, a K-9 police officer stopped a vehicle because the vehicle
slowly moved onto the shoulder for one or two seconds and then jerked back
onto the road. The K-9 officer approached the two men in the vehicle, asked
for pertinent information and issued a warning to the driver. Even though he
acknowledged the traffic stop was over, the K–9 officer instructed the driver
not to move while he walked his dog around the vehicle, and the dog alerted
the officer of the presence of drugs. Seven or eight minutes had elapsed from
the time the written warning was issued until the dog indicated the presence
of drugs. A search of the vehicle revealed a large bag of methamphetamine.
A motion to suppress was brought because the traffic stop had ended and the
police officer had unconstitutionally extended that stop to conduct another
investigation to walk the dog around the vehicle.
In suppressing the search that resulted in the drug charges, the United
States Supreme Court held that “while an officer may conduct certain
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persons, houses, papers and possessions from unreasonable searches and
seizures, and no warrant to search any place or to seize any person or things
shall issue without describing them as nearly as may be, nor without probable
cause, supported by oath or affirmation subscribed to by the affiant.”
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unrelated checks during an otherwise lawful traffic stop . . . he may not do so
in a way that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual.” Id. at 575 U.S. at 355, 135 S.
Ct. at 1615. It then held that “A seizure justified only by a police-observed
traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the
time reasonably required to complete th[e] mission’ of issuing a ticket for the
violation.” Id. at 575 U.S. at 350–51, 135 S.Ct. at 1612 (alterations in
original) (quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834,
(2005)).
Rodriguez does not apply to this case for several reasons. First, the
charges that were at issue in Rodriquez – the drug charges - flowed from an
unreasonably prolonged stop after the traffic violation had been resolved by
the issuance of a warning citation, while in this case the evidence at issue
directly flowed from a legal traffic stop. Second, Rodriquez involved a search
after the reason for the lawful search had ended and the drug charges were
the result of a prolonged stop, while in this case, the investigation as to
whether to arrest Anderson for DUI was ongoing because of the failed field
sobriety test. Third, even if Rodriquez somehow applied, there was no delay
because Officer Spealman, who had already observed that Anderson was
impaired when he exited his vehicle, testified that the failed field sobriety
occurred contemporaneously with the drug investigation so that there was no
unreasonable delay. Finally, Anderson has not shown how he was impacted
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in any way by the drug investigation even if there had been a delay because
he would have still failed the field sobriety test and blood draw, just sooner.
Accordingly, for the foregoing reasons, because we affirm the trial
court’s denial of the motion to suppress the results of the field sobriety test
and the blood test, we affirm Anderson’s conviction of DUI.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2023
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