Com. v. Vasquez, C. ( 2023 )

J-A09019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER JOSEPH VASQUEZ :
:
Appellant : No. 835 MDA 2022
Appeal from the Judgment of Sentence Entered May 2, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004712-2020
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 31, 2023
Appellant, Christopher Joseph Vasquez, appeals from the judgment of
sentence entered on May 2, 2022, following his bench trial convictions for
three counts of driving under the influence (DUI) of a controlled substance.1
We affirm.
The trial court set forth the facts and procedural history of this case as
follows:
In the early morning hours of August 6, 2020, Officer Nicholas
Grecco of the Northern Lancaster Regional Police Department was
traveling north on Route 72, and observed a vehicle[] approaching
in the southbound lane with its high beam headlights activated.
The operator then dimmed the high beam headlights and Officer
Grecco saw that one of the headlights on the approaching vehicle
was not functioning. Upon looking in his rear-view mirror after
the vehicle passed, Officer Grecco saw that the vehicle did not
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1 75 Pa.C.S.A. §§ 3802(d)(2) (DUI - impaired ability), 3802(d)(1)(i) (DUI
controlled substance – schedule 1), and 3802(d)(iii) (DUI controlled substance
– metabolite), respectively.
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have any working registration lights. As a result of the
nonoperative lights. Officer Grecco made a U-turn to follow the
vehicle, and after approximately two miles, initiated a traffic stop;
he also noted the operator failed to use a turn signal when pulling
over.
After making contact with the operator, Officer Grecco noticed the
odor of marijuana emanating from the vehicle. As requested, the
operator handed over his Pennsylvania driver’s license identifying
him as [Appellant] when Officer Grecco saw that Appellant’s eyes
were glassy. Officer Grecco then returned to his vehicle and ran
Appellant’s license, confirming it was valid and that Appellant had
no outstanding warrants. Upon his return, Officer Grecco asked
Appellant to exit the vehicle, and if Appellant would consent to a
search of the vehicle. Appellant advised that there was nothing
illegal in the vehicle and consented to a search of the vehicle.
During his search, Officer Grecco found a marijuana roach in a
small compartment to the left of the steering wheel. When the
search was complete, Officer Grecco informed Appellant what he
found, and wanted to make sure [Appellant] was not impaired [if
Officer Grecco were not] going to take him into [] custody for
[DUI. Officer Grecco] asked [Appellant] if he would submit to field
sobriety testing; Appellant consented.
Officer Grecco then guided Appellant through the horizonal gaze
nystagmus (“HGN”), walk and turn, one leg stand, and lack of
convergence sobriety tests, and Appellant failed the HGN, walk
and turn, and lack of convergence sobriety tests. At that time,
based on the [failure to use] a turn signal [during the traffic stop],
the odor of marijuana emanating from the vehicle, the marijuana
roach, and the failure of three out of four field sobriety tests,
Officer Greco placed Appellant under arrest for suspected DUI.
On June 8, 2021, Appellant, through counsel, filed a pre-trial
motion to suppress evidence based on a lack of probable cause of
impairment. On September 23, 2021, a suppression hearing was
held [] wherein Appellant argued that Officer Grecco lacked
probable cause to arrest Appellant for DUI because there was
insufficient evidence of intoxication and impaired driving behavior.
Specifically, Appellant argued that the results of the HGN field
sobriety test were insufficient in determining probable cause for
arrest for DUI. At the suppression hearing, the Commonwealth
argued that current case law holds that the results of the HGN test
can be used for determining probable cause for arrest. Following
argument, [the trial court] denied Appellant’s motion to suppress.
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On February 4, 2022, following a non-jury trial, [ ] Appellant was
found guilty of [the aforementioned crimes]. Appellant was found
not guilty of disorderly conduct. On May 2, 2022, Appellant was
sentenced to three to [23] months’ incarceration.
Trial Court Opinion, 9/20/2022, at 1-3 (quotations, footnotes, record citations,
and some parentheticals omitted). This timely appeal resulted.2
On appeal, Appellant presents a sole issue for our review:
Did the court below err by finding that probable cause existed to
arrest [Appellant] for a violation of [75 Pa.C.S.A. §] 3802 of the
[M]otor [V]ehicle [C]ode and declining to suppress the results of
chemical testing on his blood and the observations of a drug
recognition expert?
Appellant’s Brief at 9 (numbering omitted).
Appellant generally argues that Officer Grecco lacked probable cause to
arrest Appellant for DUI of a controlled substance. Id. at 17-30. Appellant
asserts that the totality of the circumstances “leading up to the field sobriety
tests” were not sufficient to justify a belief that he was incapable of safe
driving. Id. at 19. Appellant contends that “[t]he facts established by the
Commonwealth during this portion of the stop included: a malfunctioning
headlight, a malfunctioning license plate light, [the failure to use a turn signal]
when [Appellant] pulled over after the officer activate[d] his lights behind him,
the odor of marijuana ‘emanating’ from the vehicle, and the presence of a
marijuana roach found in the vehicle during a consen[sual] search[.]” Id. at
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2 Appellant filed a notice of appeal on May 31, 2022. On June 3, 2022, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
June 24, 2022. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a)
on September 20, 2022.
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19 (record citations omitted). More specifically, citing our Supreme Court’s
decisions in Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021) and
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), Appellant opines
that “[i]n light of widespread prescription and use of medical marijuana, the
smell thereof – without more – is insufficient to establish probable cause for
a warrantless search of a motor vehicle.” Id. at 23. Further, Appellant
contends that “field sobriety tests did not establish probable cause where none
existed before.” Id. at 25. Appellant acknowledges that “the rules of evidence
do not apply in an inquiry into probable cause” and concedes that “even
though it may be inadmissible to prove someone guilty, a suppression court
may consider an officer’s testimony regarding [the] HGN [sobriety test] when
deciding whether there was probable cause to arrest.” Id. at 27. Appellant
asserts, however, that Officer Grecco’s testimony about the field sobriety tests
did not support a finding of probable cause to arrest because he conducted
the tests initially to detect alcohol impairment rather than marijuana,
Appellant advised the officer that he had a medical condition or “a leaky
retina,” Appellant completed the one-leg-stand test without incident, and that
asking for clarification on the walk-and-turn test did not equate to impairment.
Id. at 25-30. Appellant asserts that Officer Grecco “effectively took
[Appellant] into custody before administering field sobriety tests by informing
him he would be arrested if he did not perform them.” Id. at 18.
Our Supreme Court previously determined the standard of review
governing an order denying a motion to suppress:
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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. 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 [trial] court []
below are subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations
and quotations omitted).
“[T]his Court [has] held that a police officer must have probable cause
to support a [] stop where the officer's investigation subsequent to the stop
serves no investigatory purpose relevant to the suspected Vehicle Code
violation.” Commonwealth v. Venable, 200 A.3d 490, 498 (Pa. Super.
2018) (internal citation, quotations and original brackets omitted).
Furthermore, we have recently observed:
Any technical traffic violation (supported by probable cause)
legitimizes a stop, even if it is merely a pretext for some other
investigation. See Whren v. United States, 517 U.S. 806(1996). “During a traffic stop, the officer may ask the detainee a
moderate number of questions to determine his identity and to try
to obtain information confirming or dispelling the officer's
suspicions.” Commonwealth v. Harris, 176 A.3d 1009, 1020
(Pa. Super. 2017) (citation and internal quotation marks omitted).
“[I]f there is a legitimate stop for a traffic violation ... additional
suspicion may arise before the initial stop's purpose has been
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fulfilled, then, detention may be permissible to investigate the
new suspicions.” Id. (citation omitted). This further detention
must be supported by reasonable suspicion[.]
Commonwealth v. Burger, 2023 WL 4348334, at *5 (Pa. Super. 2023)
(unpublished memorandum).3
Here, there is no dispute that the officer had probable cause to conduct
a traffic stop for suspected violations of the Motor Vehicle Code. See
Appellant’s Brief at 20 (Appellant “concedes that the lighting violations
provided Officer Grecco with a valid basis to stop his vehicle.”). Thus, we
must examine whether the investigating officer had reasonable suspicion to
further detain Appellant. See Commonwealth v. Dabney, 274 A.3d 1283,
1293 (Pa. Super. 2022) (An officer must have reasonable suspicion to detain
a DUI suspect to conduct field sobriety tests).
This Court has recognized that field sobriety tests are “generally
accepted methods for ascertaining alcohol or drug impairment at the time of
a traffic stop.” Commonwealth v. Salter, 121 A.3d 987, 996 (Pa. Super.
2015). More specifically, field sobriety tests
are grounded in theories which link an individual's lack of
coordination and loss of concentration, with intoxication. This
inter-relationship is also recognized in what is generally accepted
as the common indicia of intoxication, within the understanding
and experience of ordinary people. In fact, non-expert testimony
is admissible to prove intoxication where such testimony is based
upon the witness' observation of the defendant's acts and speech
____________________________________________
3 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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and where the witness can opine as to whether the defendant was
[intoxicated].
Id. (citation omitted).
However, this Court has also recognized that subsequently “failing these
tests is not a requirement for a determination of probable cause.” Salter,
121 A.3d at 997, citing Commonwealth v. Slonaker, 795 A.2d 397, 402
(Pa. Super. 2002) (“[T]he law is well-settled that reasonable grounds to arrest
does not require the failure of field sobriety tests.”). “Nonetheless, performing
poorly may be sufficient for a finding of impairment.” Id., citing
Commonwealth v. Downing, 739 A.2d 169, 173 (Pa. Super. 1999)
(“[Downing] demonstrated his impairment by doing poorly on three field
sobriety tests.”). “Even if [an] inability to perform [sobriety tests] could have
other explanations, this circumstance, alone, does not make the officer's
decision to arrest on suspicion of DUI unreasonable.” Id. at 997-998. “The
applicable standard for determining probable cause calls for a totality of
circumstances analysis, not a mechanical consideration of specific factors”
and, furthermore, “[i]t is the facts and circumstances within the personal
knowledge of the police officer that frames the determination of the
existence of probable cause.” Id. at 995 (citations omitted; emphasis in
original). “[I]t is well[-]established that probable cause to arrest can be
supported by the existence of evidence that is inadmissible at trial” and an
officer “trained in the administration of the HGN test, [is] permitted to rely on
his observations gained from that procedure to support his conclusion that [an
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offender] was driving under the influence of a controlled substance.”
Commonwealth v. Weaver, 76 A.3d 562, 567 (Pa. Super. 2013) (citation
omitted). Finally, our Supreme Court has held “that the odor of marijuana
alone does not amount to probable cause to conduct a warrantless search of
a vehicle but, rather, may be considered as a factor in examining the totality
of the circumstances.” Barr, 266 A.3d at 44.
In this case, the trial court determined:
Here, before Officer Grecco requested consent to search
Appellant’s vehicle, he observed Appellant’s failure to use a turn
signal to turn after the traffic stop was initiated. [Officer Grecco
testified that such action is] “an indicator of – could be an indicator
of DUI according to the National Highway Traffic Safety
Administration.” Further, after approaching Appellant’s vehicle[,]
Officer Grecco smelled an odor of marijuana emanating from the
vehicle, and saw that Appellant’s eyes were glassy, both indicators
of intoxication. After informing Appellant of the odor of marijuana,
Officer Grecco asked if there was anything illegal in the vehicle to
which Appellant replied there was not. At this point in the
interaction, Officer Grecco abandoned the investigation
concerning the traffic code violations and began an independent
investigation into possible DUI. As required, Officer Grecco
articulated specific observations, which in light of his experience
and training, reasonably inferred that Appellant may be
intoxicated and impaired.
Trial Court Opinion, 9/20/2022, at 8 (record citations omitted). The trial court
further rejected Appellant’s implication “that Officer Grecco relied solely on
the smell of marijuana [for] probable cause to arrest” Appellant. Id. Instead,
Appellant consented to a search of the vehicle which revealed a marijuana
roach that “was relatively fresh.” Id. at 9 (record citation omitted). This
discovery, in turn, led to the initiation of field sobriety tests. Id. Appellant
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performed poorly on three of the four field sobriety tests conducted. Id. at
11 (“Here, while Appellant completed the field sobriety tests, Officer Grecco
observed that Appellant showed four of six possible indicators of impairment
when performing the HGN test, two out of eight indicators of impairment
performing the walk and turn test[,] and failed two of three passes used for
the lack of convergence test.”). Thus, the trial court ultimately determined
that “[w]ith consent to search, and consent to participate in field sobriety
testing, Officer Grecco found additional indicators of impairment when he
found the marijuana roach and when Appellant failed three of four field
sobriety tests” and “[u]sing the facts and circumstances within his personal
knowledge, and his training as a law enforcement officer, Officer Grecco
correctly determined that probable cause of impairment existed to support
Appellant’s arrest for DUI.” Id.
We agree with the trial court’s assessment. Initially, as stated earlier,
we note that Appellant does not challenge the legality of the traffic stop. See
Appellant’s Brief at 20 (Appellant “concedes that the lighting violations
provided Officer Grecco with a valid basis to stop his vehicle.”). Once Officer
Grecco initiated a valid traffic stop, he thereafter acquired the requisite
reasonable suspicion to further detain Appellant, including Appellant’s failure
to use a turn signal when pulling over during the valid traffic stop, Appellant’s
glassy eyes as indica of intoxication, and the odor of marijuana emanating
from the vehicle wherein Appellant was the only traveler. Also, there is no
dispute that Appellant subsequently agreed to a voluntary search of his
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vehicle. Id. at 24 (Appellant “consented to a search of his vehicle.”). That
search uncovered a partially burnt marijuana joint inside the vehicle that the
officer described, based upon his experience and training, as “relatively fresh.”
Taken together, the facts and circumstances known to Officer Grecco, in light
of his training and experience, gave him the requisite reasonable suspicion to
believe that Appellant recently ingested marijuana, which justified further field
sobriety tests. Dabney, supra. Thereafter, Appellant failed three of the four
field sobriety tests, which this Court has found sufficient for a finding of
impairment, even if Appellant offered other excuses for his poor performance.
Downing, supra. As such, in summation, we conclude that Officer Grecco
had reasonable suspicion to detain Appellant for further investigation after
initiating a valid traffic stop and that Appellant’s poor performance on
subsequent field sobriety tests gave Officer Grecco probable cause to arrest
Appellant for DUI. Accordingly, the trial court did not err by denying
suppression. Hence, Appellant’s sole appellate issue lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/31/2023
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