Com. v. Harvey, J.

J-S64002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
JULIUS HARVEY
Appellant No. 203 MDA 2017
Appeal from the Judgment of Sentence December 29, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000717-2016
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 08, 2017
Appellant, Julius Harvey, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas following his conviction
for driving under the influence (“DUI”). Harvey contends the suppression court
erred as a matter of law when it concluded Harvey’s arrest was supported by
probable cause. Further, Harvey argues the Commonwealth presented
insufficient evidence to support his conviction. We affirm.
On November 6, 2015, following a traffic stop and welfare check, Harvey
was charged through the filing of a criminal complaint with DUI-controlled
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 Former Justice specially assigned to the Superior Court.
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substance,1 possession of drug paraphernalia,2 and driving without a license.3
Harvey filed a motion to suppress. The court held a suppression hearing.
The court aptly summarized the testimony presented at the suppression
hearing as follows:
On October 16, 2015, at approximately 3:00 p.m., Sheena
Zerbe-Monk was being driven home by a coworker from her job
at Arden Courts off of Lingelstown Road. Ms. Monk and her driver
were on Progress Avenue when Ms. Monk noticed a Cadillac in the
right hand lane stopped at a green light. The front end of the
Cadillac was in the left lane, and the driver’s head was against the
window. Ms. Monk testified that many cars were passing and
beeping. Ms. Monk said she got a good look at the driver and
identified him as [] Harvey in the courtroom. Ms. Monk stated that
she was worried that [Harvey] might have had a heart attack or
stroke, so she asked her coworker if they should stop and check
on him. Before they could do so, Ms. Monk observed the Cadillac
take off and catch up to them. [Harvey] then cut right in front of
the car Ms. Monk was riding in. She testified that they remained
behind him and he was swerving, braking, slamming on the gas
and driving “really crazy.” Ms. Monk was concerned about other
drivers and kids, because it was right after school hours. Ms. Monk
then watched [Harvey] as he pulled into a Wendy’s [parking lot].
As Ms. Monk and her coworker continued to her apartment, which
was a very short distance from the Wendy’s, Ms. Monk saw Officer
Justin Doyle on foot patrol and “frantically ran up to him.” She
asked the officer to please go find [Harvey] because she did not
want him to get back on the road.
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175 Pa.C.S.A. § 3802(d)(2). Harvey was also initially charged with a second
count of DUI-controlled substance, pursuant to 75 Pa.C.S.A. § 3802(d)(1)(ii),
but this charge was later withdrawn by the Commonwealth. See N.T.,
Suppression/Bench Trial, 12/29/16, at 3.
2 75 Pa.C.S.A. § 780-113(a)(32).
3 75 Pa.C.S.A. § 1501(a).
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Officer Doyle, a patrol officer with Susquehanna Township
Police Department, confirmed Ms. Monk’s testimony that she
jumped out of the car and told him she had been following a
vehicle down Progress Avenue that had been driving erratically,
and that the car had turned into Wendy’s. She told him she feared
for other motorists on the roadway, gave him a description of the
gold Cadillac, and relayed that the driver was a black man who
appeared to be falling asleep at the wheel. Because Officer Doyle
was too far from his vehicle, he called Officer Demetrius Glenn on
the radio. After calling Officer Glenn, Officer Doyle responded to
the Wendy’s as [Officer Glenn’s] backup officer. Once there,
Officer Doyle observed [Harvey] half hanging out of his car; he
had one foot out. His vehicle was parked in between two spots in
a crooked fashion, and partially sticking out into the traffic way.
When Officer Doyle initially approached [Harvey], it was unclear
to him whether this was a medical issue or drug-induced behavior.
Officer Doyle made the observation that there was no odor of
alcohol. [Harvey’s] speech was extremely slurred. Officer Doyle
asked [Harvey] his name several times and each time he was
asked, he became more and more agitated. Officer Doyle asked
[Harvey] if he had any medical problems. [Harvey] told him about
some of his issues, including diabetes, so Officer Doyle called the
EMS. [Harvey] was medically evaluated, and it was determined
that his blood sugar was at a normal level, and his blood pressure
was elevated, but everything else was fine.
When asked what conclusions Officer Doyle made based on
his observations of [Harvey], Officer Doyle said that based on his
[seven years of] training and experience, he believed [Harvey]
was under the influence of a controlled substance, and that his
behavior led him to believe that it was crack cocaine. Officer Doyle
clarified that the combination of [Harvey’s] elevated blood
pressure, his agitation, slurred speech, the inability to stay on one
topic, and what he was told about his driving supported his
conclusion that [Harvey] was high on crack cocaine. Officer Doyle
also testified that he has had experience in DUI’s that involve
drugs instead of alcohol. Specifically, he estimated observing the
effect of crack cocaine in drivers on approximately ten occasions.
Moreover, Officer Doyle is a diabetic himself, and personally
experienced in the effects of a diabetic episode. After [Harvey]
was arrested, the inventory search of his car revealed money
strewn throughout the car ($139 in total), and a crack pipe in the
center console with residue that tested positive for crack cocaine.
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Officer Demetrius Glenn, a patrol officer with the
Susquehanna Township Police, testified that on the afternoon in
question, Officer Doyle made contact with him and explained that
there was a vehicle displaying erratic behavior that was possibly
in the parking lot of Wendy’s. Officer Glen’s testimony mirrored
Officer Doyle’s testimony. He initially believed that [Harvey] either
had a medical issue or that he was under the influence of drugs.
Upon learning of [Harvey’s] diabetic issue, Officer Glenn testified
that based on his personal experience (responding to EMS calls
for diabetics), diabetics are either lethargic or very aggressive to
the point that they are fighting. Officer Glenn found his behavior
to be indicative of crack cocaine use.
Trial Court Rule 1925(a) Opinion, 5/17/17, at 1-4 (internal citations to the
record omitted).
The court denied Harvey’s suppression motion, concluding the police
officers had probable cause to arrest Harvey without a warrant. The parties
immediately proceeded to a bench trial, following which the trial court
convicted Harvey of DUI-controlled substance.4 Harvey received a sentence of
thirteen days to six months’ imprisonment.5 This timely appeal follows.
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4The trial court dismissed the charges of possession of drug paraphernalia
and driving without a license, citing the Commonwealth’s failure to present
any evidence relating to these charges. See N.T., Suppression/Bench Trial,
12/29/16, at 52.
5 While the trial court clearly sentenced Harvey to thirteen days to six months’
imprisonment at his bench trial, a clerical error resulted in the imposition of a
sentence of six to thirteen months’ imprisonment. See N.T.,
Suppression/Bench Trial, 12/29/16, at 53; Docket Entry, 12/29/16. Following
the filing of Harvey’s appeal, the trial court corrected this patent clerical error.
See Order, 4/18/17. See also Commonwealth v. Klein, 781 A.2d 1133,
1135 (Pa. 2011) (holding that while a trial court is typically divested of
jurisdiction to correct an order after a notice of appeal has been filed, a trial
court may correct a “patent defect or mistake in the record”).
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On appeal, Harvey raises two issues. First, he avers the trial court erred
in denying his pre-trial motion to suppress. Next, that his conviction for DUI-
controlled substance was not supported by sufficient evidence.
Turning to Harvey’s first issue on appeal,
[o]ur standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing the ruling of the
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citation
omitted). Additionally, “[i]t is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given to
their testimony. The suppression court is free to believe all, some or none of
the evidence presented at the suppression hearing.” Commonwealth v.
Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (citation omitted).
Harvey does not contest the trial court’s findings of fact. Rather, he
contests the trial court’s legal conclusion that the facts supported the police
officer’s probable cause determination. See Appellant’s Brief, at 12, 14-20.
Specifically, Harvey contends the police officers lacked probable cause to
arrest him for DUI-controlled substance as they did not personally observe his
driving, did not note a smell of drugs or alcohol on Harvey or in his vehicle,
and did not perform field sobriety tests at the scene. See id., at 16-18.
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Instead, Harvey alleges that the police only decided he must be under the
influence when they looked at his criminal history. See id., at 17-20. Further,
Harvey maintains that his behavior at the scene is as indicative of a medical
reaction, as a reaction to a controlled substance. See id., at 19-20.
“To be constitutionally valid, a warrantless arrest must, of course, be
supported by probable cause.” Commonwealth v. Evans, 685 A.2d 535, 537
(Pa. 1996) (opinion in support of affirmance) (citation omitted). In the context
of a DUI matter, a police officer has probable cause to make a warrantless
arrest “where the officer has knowledge of sufficient facts and circumstances
to warrant a prudent person to believe that the driver has been driving under
the influence of alcohol or a controlled substance.” Commonwealth v.
Hilliar, 943 A.2d 984, 994 (Pa. Super. 2008) (citation omitted).
Probable cause is determined by the totality of the circumstances. See
Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (en banc).
As such, “a police officer may utilize both his experience and personal
observations to render an opinion as to whether a person is intoxicated.” Id.(citations and quotation marks omitted). Further, while field sobriety tests are
helpful in developing a police officer’s probable cause for arrest, “reasonable
grounds to arrest [for suspicion of DUI] does not require the failure of field
sobriety tests.” Commonwealth v. Slonaker, 795 A.2d 397, 402 (Pa. Super.
2002) (citation and footnote omitted). Finally, “[p]robable cause exists when
criminality is one reasonable inference; it need not be the only, or even the
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most likely, inference.” Commonwealth v. Quiles, 619 A.2d 291, 298 (Pa.
Super. 1993) (en banc) (citations omitted).
Here, the totality of the circumstances, when viewed through the lens
of the officers’ experience and personal observations, supports their
determination that probable cause existed to arrest Harvey for DUI-controlled
substance. Ms. Monk testified she observed Harvey apparently sleeping behind
the wheel in the middle of an active intersection. When Harvey awoke, Ms.
Monk observed him swerving, stepping on the brake, and driving erratically.
Ms. Monk’s statements were enough for Officer Doyle and Officer Glenn to
check on Harvey in the Wendy’s parking lot. See Commonwealth v.
Anthony, 977 A.2d 1182, 1187-1188 (Pa. Super. 2009) (stating that police
can rely upon information supplied by an identified citizen about defendant’s
driving behavior in determining whether reasonable suspicion exists to stop
car based on suspected DUI).
Even though the police officers did not administer field sobriety tests,
both officers observed Harvey at the scene—and noted that Harvey’s
agitation, slurred speech, inability to stay on one topic, and elevated blood
pressure was indicative of either a person experiencing a diabetic event or
high on crack cocaine.6 After the EMS found that Harvey’s blood sugar was in
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6Officer Glenn did not ever believe Harvey was suffering from a diabetic event
because his actions mirrored those of an individual high on crack cocaine. See
N.T., Suppression/Bench Trial, 12/29/16 at 43.
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a normal range, the officers concluded, based on their experience, that Harvey
had been driving under the influence of crack cocaine.
Harvey argues this evidence could have just as easily been evidence of
a medical event. However, assignment of credibility and weight to the
evidence is squarely within the suppression court’s discretion. We cannot
conclude the suppression court abused its discretion in finding both officers
credible. As such, the circumstances to which the officers testified was
sufficient to establish probable cause to arrest Harvey for DUI. See Hilliar,
943 A.2d at 994. Accordingly, Harvey’s first issue on appeal merits no relief.
In his second and final issue, Harvey argues the evidence of record is
insufficient to support his conviction for DUI. Specifically, he claims the
Commonwealth failed to prove that his ability to drive safely was impaired by
a controlled substance beyond a reasonable doubt, because the officers did
not personally observe him driving, did not smell drugs or alcohol on Harvey’s
person or in his vehicle, and did not perform field sobriety tests.
When examining a challenge to the sufficiency of the evidence, our
standard of review is whether, when viewed in a light most favorable to the
verdict winner, the evidence at trial and all reasonable inferences drawn
therefrom is sufficient for the trier or fact to find that each element of the
crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The
Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence.”
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Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) (citation
omitted).
“[T]he facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Id. (citation omitted). Any doubt
raised as to the accused’s guilt is to be resolved by the fact-finder. See id.“As an appellate court, we do not assess credibility nor do we assign weight
to any of the testimony of record.” Commonwealth v. Kinney, 863 A.2d
581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not disturb
the verdict “unless the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the combined circumstances.”
Bruce, 916 A.2d at 661 (citation omitted).
Harvey was convicted of DUI-controlled substance under § 3802(d)(2)
of the Vehicle code, which provides:
(d) Controlled Substances – An individual may not drive, operate
or be in actual physical control of the movement of a vehicle under
any of the following circumstances:
*****
(2) 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.
Ms. Monk reported observing Harvey apparently sleeping at the wheel
of his car in the middle of a roadway. Harvey then proceeded to drive
erratically, swerving, braking and slamming on the brakes, before pulling into
a parking lot. When the officers approached him, they noted he was agitated,
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exhibited extremely slurred speech, and could not stay on one topic. Both
officers testified that, based on their experience, this behavior was indicative
of an individual under the influence of crack cocaine. Further, after Harvey
was arrested and his car was impounded, the officers testified to finding a
crack pipe in the center console with crack cocaine residue therein.
In an effort to rebut this evidence, Harvey attempts to compare his case
to the matter in Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super.
2007), where a panel of this Court found insufficient evidence for a DUI-
controlled substance conviction. Harvey argues that, like the defendant in
Etchison, his conviction should be found to rest on an insufficient basis as
the Commonwealth failed to present lab tests to prove that Harvey was under
the influence of drugs at the time he was arrested.
Harvey misinterprets Etchison. There, the panel’s finding of insufficient
evidence was predicated on the Commonwealth’s failure to present evidence
of impaired driving, not a lack of evidence of drugs in the blood stream. See
916 A.2d at 1172. Here, the Commonwealth presented sufficient evidence of
Harvey’s impaired driving through the testimony of Ms. Monk.
The testimony provided by Ms. Monk, and Officers Doyle and Glenn was
sufficient to prove the elements of DUI-controlled substance beyond a
reasonable doubt. Accordingly, pursuant to our standard of review, we find
that Harvey is not entitled to relief on this claim.
Judgment of Sentence affirmed.
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Judge Shogan joins the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
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