Commonwealth v. Copenhaver

J-S69043-18
2018 PA Super 333COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR LEE COPENHAVER :
:
Appellant : No. 383 MDA 2018
Appeal from the Judgment of Sentence September 18, 2017
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0001070-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
OPINION BY MURRAY, J.: FILED DECEMBER 07, 2018
Victor Lee Copenhaver (Appellant) appeals from the judgment of
sentence imposed after the trial court convicted him of two counts of driving
under the influence of alcohol and a controlled substance (DUI),1 possession
of a small amount of marijuana, and three summary offenses under the
Vehicle Code. Upon review, we affirm.
On August 31, 2015, Adams County Deputy Sheriff Timothy Beall
initiated a traffic stop of Appellant’s vehicle because it had an expired
registration. The trial court provided the following summary:
At trial, Sheriff Deputy Beall testified that after he stopped
Appellant’s vehicle, he asked Appellant to produce his license,
registration, and insurance information. Appellant flailed his
hands in the air and stated that he didn’t have a license and was
suspended. While speaking with Appellant, Sheriff Deputy Beall
observed an odor of alcohol and marijuana emanating from the
passenger compartment of the vehicle. Sheriff Beall noticed that
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1 75 Pa.C.S.A. §§ 3802(d)(2), (3).
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Appellant had blood shot eyes and slurred speech. Sheriff Deputy
Beall asked Appellant to exit the vehicle. Appellant complied and
stated, “I have a bowl in my pocket.” Sheriff Deputy Beall took
the smoking device out of Appellant’s pocket. In addition, Sheriff
Deputy Beall recovered suspected marijuana from the glove box
in Appellant’s vehicle. Sheriff Deputy Beall advised Appellant that
he was going to conduct Standard Field Sobriety Tests (SFSTs)
and then led Appellant to a flat, well-light[ed] area. Appellant
showed signs of impairment and stated that he could not complete
the SFSTs. For Appellant’s safety, Sheriff Deputy Beall concluded
the SFSTs. Based on the totality of the circumstances, Sheriff
Deputy Beall suspected that Appellant was under the influence of
drugs, alcohol, or a combination of both. Sheriff Deputy Beall took
Appellant into custody.
On July 12, 2017, after a bench trial, this Court found
Appellant guilty of Driving Under the Influence of a Controlled
Substance, as an ungraded misdemeanor (Count 3); Driving
Under the Influence of Alcohol and a Controlled Substance, as an
ungraded misdemeanor (Count 4); Possession of a Small Amount
of Marijuana, as an ungraded misdemeanor (Count 5);
Registration/Certification of Title, as a summary offense (Count
7); Driving Without a License, as a summary offense (Count 8);
and Unauthorized Transfer or Use of Registration, as a summary
offense (Count 9). On September 18, 2017, Appellant was
sentenced on Count 4 to seventy-two (72) hours to six (6) months
partial confinement at the Adams County Adult Correctional
Complex. The Sentencing Court sentenced Appellant to pay fines
on Counts 5, 7, 8 and 9.
Trial Court Opinion, 11/20/17, at 1-3 (footnotes omitted).
Appellant filed a post-sentence motion, one day late, on September 29,
2017. See Pa.R.Crim.P. 720 (“[A] written post-sentence motion shall be filed
no later than 10 days after imposition of sentence”). On October 17, 2017,
he filed an appeal in this Court at No. 1620 MDA 2017. On February 5, 2018,
this Court erroneously quashed the appeal on the basis that Appellant’s post-
sentence motion was timely and therefore pending before the trial court. See
Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en banc)
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(while timely post-sentence motion tolls the appeal period, an untimely post-
sentence motion does not). Appellant did not seek to reinstate his appeal at
No. 1620 MDA 2017. On February 26, 2018, Appellant filed the instant appeal.
Because Appellant’s untimely post-sentence motion did not toll the appeal
period, the appeal was untimely and this Court quashed it on June 4, 2018.
On June 25, 2018, Appellant filed an application for reconsideration of the
June 4, 2018 quashal. On June 28, 2018, this Court entered an order stating
that “a breakdown in the operations of this Court may have occurred.” Order,
6/28/18. Thus, we vacated the June 4, 2018 order and reinstated the
underlying appeal. Id. Both Appellant and the trial court have complied with
Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Appellant presents three issues:
1. Do sheriffs and their deputies possess the authority to stop a
motorist for an expired registration sticker, a summary violation
of the Motor Vehicle Code?
2. Did the Commonwealth possess sufficient evidence to convict
[Appellant] of DUI under both 75 Pa.C.S.[A. §] 3802(d)(2) and
(d)(3)?
3. Is the lower court’s verdict contrary to the weight of the
evidence?
Appellant’s Brief at 5.
Appellant first challenges the trial court’s denial of his suppression
motion. Our standard of review 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
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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] 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. Mason, 130 A.3d 148, 151-52 (Pa. Super. 2015) (citation
omitted). Additionally, “our scope of review from a suppression ruling is
limited to the evidentiary record that was created at the suppression hearing.”
Commonwealth v. Rapak, 138 A.3d 666, 670 (Pa. Super. 2016) (citing In
re L.J., 79 A.3d 1073, 1087 (Pa. 2013)).
Appellant claims that “[he] was deprived of his Fourth Amendment and
Article I, Section 8 guarantees when the trial court failed to suppress evidence
that was obtained as the result of an illegal stop and search.” Appellant’s Brief
at 10. Specifically, Appellant asserts that “the deputy sheriff lacked the
statutory or common law authority to detain Appellant for an expired
registration sticker seen on his vehicle.” Id. The essence of Appellant’s
argument is that “[s]heriffs possess no statutory authority to enforce the
Motor Vehicle Code, and the expired sticker does not amount to a ‘breach of
the peace’ as understood at common law.” Id. Appellant cites
Commonwealth v. Marconi, 64 A.3d 1036 (Pa. 2013), and
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Commonwealth v. Leet, 641 A.2d 299 (Pa. 1994), to support his argument.
Upon review, we are not persuaded that he is entitled to relief.
“The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d
889, 892 (Pa. Super. 2012). Our Constitution establishes sheriffs as “[c]ounty
officers.” Pa. Const. Art. IX, § 4. However, while “the Constitution establishes
the office, it does not describe the duties of a sheriff.” Kopko v. Miller, 892
A.2d 766, 770 (Pa. 2006). “The General Assembly has limited the powers and
duties of sheriffs to those ‘authorized or imposed upon them by statute.’
Further, a sheriff is mandated to ‘serve process and execute orders directed
to him pursuant to the law.’” Id. (citing 13 P.S. § 40; 42 Pa.C.S.A. § 2921).
Although “sheriffs and their deputies are not ‘police officers’ under the
Vehicle Code,” Marconi, 64 A.3d at 1041, in Leet, our Supreme Court held
“that the common law powers of the sheriff include the power to enforce the
motor vehicle code, and that such powers have not been abrogated by statute
or otherwise.” Leet, 641 A.2d at 301. The Supreme Court stated: “a sheriff
(and his deputies) may make arrests for motor vehicle violations which
amount to breaches of the peace committed in their presence,” where the
sheriff or deputy has “complete[d] the same type of training that is required
of police officers throughout the Commonwealth.” Id. at 303. Notably, the
Supreme Court in Leet did not identify violations which would amount to
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“breaches of the peace.” See Marconi, 64 A.3d at 1049 n.5 (“At the very
least, Leet should have considered the consequences of overlaying common-
law arrest powers for one category of peace officers, cabined only by an
undefined breach-of-the-peace litmus to determine arrest authority, over
such a more refined statutory scheme.”) (emphasis added).
This Court, however, has considered whether driving while operating
privilege is suspended or revoked, a summary offense under 75 Pa.C.S.A. §
1543, amounted to “a ‘breach of the peace,’ as contemplated by our Supreme
Court in . . . Leet . . . .” Commonwealth v. Lockridge, 781 A.2d 168, 169
(Pa. Super. 2001), affirmed on other grounds, 810 A.2d 1191 (Pa. 2002).
In an argument analogous to the one before us, the defendant in Lockridge
argued that that the sheriff’s deputy who cited him for violating Section 1543
“was unauthorized to issue the citation in question because the traffic violation
of driving while his license was suspended did not amount to a ‘breach of the
peace[.]’” Id. at 170. In finding the defendant’s arguments “unconvincing
and his interpretation of the Leet decision faulty,” we opined:
[The defendant’s] interpretation of Leet illogically limits the
authority of a trained deputy to issuing citations for only those
violations of the Vehicle Code that involve behavior or action
similar to those actions prohibited under the disorderly conduct
provision of the Crimes Code. Were we to interpret Leet as
narrowly as [the defendant] suggests, a deputy would be
prohibited from enforcing [S]ection 1543(b) of the Vehicle Code,
even if violated in his presence, because the operation of a motor
vehicle while under suspension does not necessarily involve, ‘on
any part of the driver, any intent to cause public inconvenience,
annoyance, or alarm, or recklessly create risks thereof.’ 18
Pa.C.S.A. § 5503. Such an interpretation of Leet defies logic, and
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we find [the defendant’s] ‘breach of the peace’ argument devoid
of merit.
Id. at 169-70 (citation and footnote omitted).
On appeal, the Supreme Court affirmed our decision, but did so on a
different basis. The Supreme Court emphasized that “[t]he power to arrest,
as Leet instructs us, emanates from the common law. The filing of a citation,
however, concerns a process that is among those set out in the Pennsylvania
Rules of Criminal Procedure for commencing a summary action.” Lockridge,
810 A.2d at 1194. Thus, the Supreme Court found that “Pa.R.Crim.P. 410
authorizes a deputy sheriff to file a citation for a Vehicle Code summary
violation based on information received from a witness,” and held that the
sheriff’s deputy “was authorized to file the Citation charging [the defendant]
with a 75 Pa.C.S. § 1543(b) violation.” Id. at 1196. The Supreme Court
stated:
[T]he Superior Court was correct to distinguish Leet and apply
the Rules [of Criminal Procedure] to determine whether [the
deputy sheriff] had the authority to file the Citation. We also
conclude that it was not necessary for the Superior Court to pass
upon [the defendant’s] contention regarding a breach of the peace
as discussed in Leet, for that aspect of Leet's discussion has no
relevance to an analysis of law enforcement authority which is
premised on the Rules.
Id. at 1195.
Mindful of the foregoing, we turn to the suppression record in this case.
There was no testimony at the suppression hearing. Rather, in lieu of
testimonial evidence, the parties stipulated to the following facts:
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1. On August 31, 2015, Adams County Deputy Sheriff
Timothy Beall conducted a vehicle stop of the vehicle operated by
[Appellant], Victor Copenhaver;
2. The vehicle stop occurred as a result of the deputy sheriff
observing the tailgate to the pickup truck operated by the
[Appellant] being in a down position. This caught his attention.
He further observed that the registration on the pickup truck was
expired, and additionally, the registration number was identified
as belonging to a vehicle other than the one on which it was
attached;
3. Deputy Sheriff Beall has the equivalent training and
qualifications to a Pennsylvania police officer as he has undergone
the Act 120 waiver course and is a former Maryland police officer;
4. At the time of the vehicle stop, the deputy sheriff was
acting in the capacity as a deputy sheriff in Adams County;
5. The vehicle stop of [Appellant’s] vehicle occurred within
Adams County jurisdictional limits.
See Pre-Trial Order, 1/15/16, at 1.
Per the stipulated record, Deputy Beall had the same training and
qualifications as a police officer in Pennsylvania, as he completed the “Act 120
waiver course” and was previously employed as a Maryland police officer. Id.
Deputy Beall conducted the stop of Appellant’s vehicle when he saw the
expired registration. We note that while our Supreme Court in Marconi
intimated that not all Motor Vehicle Code violations amount to breaches of the
peace, it did not expand further, such that we have no express authority with
regard to Appellant’s violation of the Vehicle Code, 75 Pa.C.S.A. § 1301.2
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2 In Marconi, the Supreme Court stated:
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Although the Supreme Court affirmed our decision in Lockridge on other
grounds, and noted that “it was not necessary for the Superior Court to pass
upon [the defendant’s] contention regarding a breach of the peace,” we find
our analysis in that case to be instructive. In particular, we described the
defendant’s breach of the peace argument in Lockridge to be “unconvincing
and his interpretation of the Leet decision faulty.” Lockridge, 781 A.2d at
169. We opined that the defendant’s “interpretation of Leet illogically limits
the authority of a trained deputy to issuing citations for only those violations
of the Vehicle Code that involve behavior or action similar to those actions
prohibited under the disorderly conduct provision of the Crimes Code.” Id. at
170. We also stated unequivocally that the defendant’s “interpretation of Leet
defies logic” and found its “breach of the peace” argument to be “devoid of
merit.” Id. Given this guidance – where we determined that driving while
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It has been suggested, in the Vehicle Code context, that all criminal
violations represent breaches of the peace, and, therefore, there is no need
to distinguish between sheriffs’ peacekeeping powers and Code enforcement
activities. This sort of oversimplification, however, does not provide the
necessary grounding for a reasoned judicial opinion. First, Vehicle Code
enforcement entails more than just arrests for criminal violations, as
exemplified by the present case concerning the establishment of checkpoints
to conduct suspicionless stops. Second, there are Vehicle Code violations
constituting summary offenses which do not readily comport with the
conception of a breach of the peace, for example, the failure to employ a seat
belt.
Marconi, 64 A.3d at 1049 n.6 (citations omitted).
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under suspension is a breach of the peace – we cannot say in Appellant’s case
that driving with an expired registration is not. Accordingly, we are not
persuaded that Appellant’s first issue merits relief.
In his next two issues, Appellant challenges the sufficiency and weight
of the evidence presented at trial.
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.
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003) (citations
omitted). “In conducting our review, we consider all of the evidence actually
admitted at trial and do not review a diminished record.” Id.With regard to a weight of the evidence claim:
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is so
unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not cognizable
on appellate review. “Moreover, where the trial court has ruled
on the weight claim below, an appellate court’s role is not to
consider the underlying question of whether the verdict is against
the weight of the evidence.” “Rather, appellate review is limited
to whether the trial court palpably abused its discretion in ruling
on the weight claim.”
Commonwealth v. Gibbs, 981 A.2d 281, 282 (Pa. Super. 2009) (citations
omitted). “[I]t is for the fact-finder to make credibility determinations, and
the finder of fact may believe all, part, or none of a witness’s testimony.” Id.- 10 -
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(citation omitted).
Upon review of Appellant’s sufficiency and weight claims, together with
the record and prevailing legal authority, we conclude that the Honorable
Thomas R. Campbell, sitting as the trial court and finder of fact, has authored
a comprehensive opinion addressing these issues. Accordingly, we adopt that
portion of Judge Campbell’s opinion as our own. See Trial Court Opinion,
11/20/17, at 6-10 (finding credible the Commonwealth’s direct and
circumstantial evidence that Appellant operated a vehicle with red eyes and
slurred speech; that odors of alcohol and marijuana emanated from
Appellant’s vehicle; that suspected marijuana and drug paraphernalia were
discovered inside Appellant’s vehicle; and Appellant exhibited signs of
impairment during the course of standardized field sobriety tests, leading the
trial court to conclude that the evidence was sufficient to support the
“necessary elements of the offenses, and prove beyond a reasonable doubt
that Appellant committed the offenses”).
In sum, Appellant’s claims do not merit relief, and we therefore affirm
the judgment of sentence. Because we have partially adopted the trial court’s
opinion, we direct the parties to include it in any future filings relating to the
merits of this appeal.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/07/2018
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