Com. v. Brandy, B.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRUCE ALLEN BRANDY, : No. 2041 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, August 25, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0014173-2013
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 10, 2016
Bruce Allen Brandy appeals the judgment of sentence in which the
Court of Common Pleas of Allegheny County sentenced him to serve 30 days
in the Intermediate Punishment Program with work, school, and medical
release eligibility for one count of DUI: High Rate of Alcohol, 75 Pa.C.S.A.
§ 3802(B); one count of DUI: General Impairment/Incapable of Driving
Safely, 75 Pa.C.S.A. § 3802(A)(1); and one count of making an improper
right turn, 75 Pa.C.S.A. § 3331(a). The trial court also ordered appellant to
attend safe driver classes, undergo a drug and alcohol evaluation, and pay a
fine of $775.
Officer John Kiefer (“Officer Kiefer”) of the Castle Shannon Borough
Police Department was on duty on May 12, 2013, and was parked in his
vehicle in a thrift store lot where he monitored the intersection of
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Grove Road and Route 88. At approximately 1:00 a.m., Officer Kiefer
observed a black Cadillac CTS (“vehicle”) turn right from Grove Road onto
Route 88 to head south toward Bethel Park. (Notes of testimony, 7/17/14 at
7-9.) Officer Kiefer also saw that the vehicle “made the turn extremely
wide. It actually ended up in the turn lane that travels northbound for Grove
Road. It’s a left turn only lane.” (Id. at 9.) According to Officer Kiefer, the
vehicle “traveled basically the whole length of the lane until it reached the
actual capping for the Hamilton turn lane.” (Id. at 9.) Officer Kiefer got
behind the vehicle and initiated a traffic stop. Officer Kiefer noticed that
appellant had “glassy, bloodshot eyes. He had [a] moderate odor of an
alcoholic beverage coming off of his breath as he spoke. His speech was
very slurred. He was very abrasive as far as a personality goes.” (Id. at
11.) Appellant then failed the field sobriety tests Officer Kiefer asked him to
perform and was placed under arrest for DUI. (Id. at 11-15.) Appellant
was transported to St. Clair Hospital where a phlebotomist administered a
blood alcohol test. Appellant’s blood alcohol content was revealed to be
0.145%. (Id. at 79-80.)
Appellant was charged with the three crimes for which he was
convicted as well as failure to keep right, 75 Pa.C.S.A. § 3301(a), which was
later withdrawn.
On March 4, 2014, appellant filed a motion to suppress on the basis of
an illegal search. On July 17, 2014, the trial court heard the motion.
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Officer Kiefer recounted the circumstances which led him to arrest appellant.
Marshall Thomas Globicki (“Globicki”), a private investigator, testified on
behalf of appellant. Globicki commented on the video from Officer Kiefer’s
dashboard camera which was played for the trial court. Globicki stated that
appellant’s vehicle turned “wide, but only for a short period of time” when he
made the turn onto Route 88. (Notes of testimony, 7/17/14 at 32-33.)
Globicki explained that the curb came out into the roadway such that
appellant had to drive into the other lane to clear the curb.1 (Id. at 44.)
Globicki further explained:
So his vehicle would have had to come out straight
to avoid going up on the island. But then if you look
at that tape, you’ll see instantaneously he turned
back into his right lane, and you’ll even see Hamilton
Road on his left. He’s already in the right lane. That
is where the policeman said he was still in the
turning lane. It’s very, very clear in that tape.
Id. at 44.
Appellant’s counsel argued that the stop was not valid because
appellant was forced to drive outside his lane due to the protrusion of the
curb. Appellant’s counsel argued that the vehicle did not travel into the
other lane, but if it did, it was only for a very short time to avoid the curb.
(Id. at 66.) The Commonwealth argued that what was important was
Officer Kiefer’s testimony that he observed the vehicle “make a right turn
into an opposing lane of travel and then continue up.” (Id. at 71-72.) The
1
Globicki called the curb as an “island.” The trial court called it a “curb.”
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Commonwealth recounted Officer Kiefer’s observations of appellant when he
made the traffic stop and appellant’s failed field sobriety tests which led to
his arrest. The Commonwealth did not believe that the curb required travel
into the next lane when making the turn. (Id. at 72-73.)
The trial court found Officer Kiefer credible and denied the motion to
suppress. (Id. at 76-77.) The Commonwealth incorporated Officer Kiefer’s
testimony into the merits of the case except for the results of certain of the
testing. Following a non-jury trial, the trial court found appellant guilty of
the three charges and imposed the sentence described above.
On October 30, 2014, appellant filed for post-trial relief and moved for
a new trial because the verdict was against the weight of the evidence and
moved for reconsideration of the denial of the suppression motion.
Appellant alleged that insufficient weight was given to the traffic video and
too much was given to Officer Kiefer’s testimony. Regarding suppression,
appellant alleged that there was no basis for the traffic stop because
appellant did not commit the alleged infraction. As a result, appellant
asserted that all evidence obtained after the traffic stop should have been
suppressed and was inadmissible.
By order dated November 7, 2014, the trial court denied the motions.
With respect to reconsideration of the denial of the motion to suppress, the
trial court reasoned:
The testimony of Officer Kiefer established that the
[appellant’s] vehicle approached the intersection
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where he made a right turn at a red signal without
coming to a complete stop. The [appellant]
executed a very wide turn south bound which placed
his vehicle in the north bound lane of travel for some
distance until that lane ended and the [appellant]
was forced to re-enter the south bound lane of travel
on Route 88. After consideration of the testimony,
the exhibits entered as evidence and having
assessed the credibility of the witnesses, this court
found that the officer had probable cause to stop and
cite the defendant for violation of the motor vehicle
code. Consequently, this Court denied the Motion to
Suppress.
Trial court opinion, 9/24/15 at 6 (footnote omitted).
With respect to the motion for a new trial because the verdict was
against the weight of the evidence, the trial court determined:
This court considered all of the evidence presented
at trial in reaching the verdict in this case. The
[appellant] was stopped for violation of the motor
vehicle code and exhibited the classic signs of
impairment. The results of field sobriety testing and
observations of the [appellant] led the officer to
conclude that he was under the influence of alcohol
and incapable of safe driving. That was confirmed
by the [appellant’s] BAC [blood alcohol content] of
.145%.
Id. at 7-8.
Appellant raises the following issues for this court’s review:
I. Did the Trial Court err as a matter of law in
denying the Post Trial Motion for a New Trial
due to the Verdict being against the Weight of
the Evidence?
A. Did the Trial Court err by not
giving enough weigh [sic] to the
traffic video and by giving too
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much weight to the arresting
officer’s testimony?
B. Did the Trial Court err by not
granting the Defendant/Appellant’s
Pre-Trial Motion?
II. Did the Trial Court err as a matter of law in
denying the Pre[-]Trial Motion to Suppress
Evidence, as well as by not granting a new
hearing on the suppression Motion?
A. Did the Trial Court err in
determining the traffic infraction
was justifiable despite video
evidence to the contrary, evidence
making traffic stop evidence
inadmissible?
Appellant’s brief at 2.
Initially, appellant contends that the verdict was against the weight of
the evidence and a new trial should have been granted because the verdict
was so contrary to one’s sense of justice as to shock the conscience.
[T]he weight of the evidence is
exclusively for the finder of fact who is
free to believe all, part, or none of the
evidence and to determine the credibility
of the witnesses. An appellate court
cannot substitute its judgment for that of
the finder of fact . . . thus, we may only
reverse the lower court’s verdict if it is so
contrary to the evidence as to shock
one’s sense of justice. 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
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trial court palpably abused its discretion
in ruling on the weight claim.
Commonwealth v. Kim, 888 A.2d 847, 851
(Pa.Super. 2005) (citations and quotations omitted).
A motion for a new trial based on a challenge to the
weight of the evidence concedes the evidence was
sufficient to support the verdict. Commonwealth v.
Davis, 799 A.2d 860, 865 (Pa.Super. 2002).
Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).
Appellant argues that the trial court erred when it failed to grant him a
new trial because the evidence was so lacking in this case as to shock the
conscience. According to appellant, entirely too much weight was given by
the jury2 to the testimony of Officer Kiefer while the video evidence was
largely ignored. Appellant asserts that the video evidence was unbiased and
showed that Officer Kiefer’s recollections were incorrect. Appellant argues
that the video and Globicki contradicted Officer Kiefer’s stated justification
for the traffic stop: that appellant made too wide a turn when turning onto
Route 88 in violation of Section 3301 of the Vehicle Code, 75 Pa.C.S.A.
§ 3301 (driving on right side of roadway), and Section 3331(a) of the
Vehicle Code, 75 Pa.C.S.A. § 3331(a) (required position and method of
turning).
Appellant argues that Globicki’s testimony as well as the video
evidence contradicts Officer Kiefer’s stated justification for the traffic stop
and renders the traffic stop improper. Appellant ignores the fact that the
2
Actually, the trial court conducted a non-jury trial.
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trial court, as the fact-finder, found Officer Kiefer credible. The trial court
heard the testimony of Officer Kiefer and Globicki and viewed the dashcam
video. The trial court was familiar with the intersection from its own
experience. The trial court believed Officer Kiefer’s version of the events
that appellant’s vehicle left the appropriate right lane when it turned onto
Route 88 from Grove Road. The trial court did not believe that Globicki’s
description of the video and of the intersection as well as the video itself
discredited Officer Kiefer’s testimony. Essentially, appellant would like this
court to reweigh the evidence in his favor. That is not the appellate court’s
function. See Kim, 888 A.2d at 851. Based on the record before this court,
we do not believe that the trial court abused its discretion when it declined
to grant the motion for a new trial as the verdict does not shock one’s sense
of justice.3
Next, appellant contends that the trial court erred as a matter of law
when it denied his motion to suppress evidence and his post-trial
reconsideration of the denial of the motion to suppress evidence. Appellant
asserts that the trial court erred when it determined that the traffic stop was
justifiable even though the video evidence was to the contrary.
3
Interestingly, appellant does not challenge Officer Kiefer’s description of his
encounter with appellant where appellant exhibited slurred speech, glassy
eyes, and smelled of alcohol. He also does not challenge Officer Kiefer’s
testimony that his performance on the field sobriety tests led Officer Kiefer
to place him under arrest or that the subsequent blood test revealed a blood
alcohol content of 0.145%. The trial court listed these facts as reasons for
the guilty verdict in its opinion.
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Initially, we note that our standard of review
when an appellant appeals the denial of a
suppression motion is well established. We are
limited to determining whether the lower court’s
factual findings are supported by the record and
whether the legal conclusions drawn therefrom are
correct. We may consider the evidence of the
witnesses offered by the Commonwealth, as verdict
winner, and only so much of the evidence presented
by [the] defense that is not contradicted when
examined in the context of the record as a whole.
We are bound by facts supported by the record and
may reverse only if the legal conclusions reached by
the court were erroneous. Commonwealth v.
O’Black, 897 A.2d 1234, 1240 (Pa.Super. 2006),
citing Commonwealth v. Scott, 878 A.2d 874, 877
(Pa.Super. 2005), appeal denied, 586 Pa. 749, 892
A.2d 823 (2005).
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006). “It is
within the sole province of the suppression court judge to weigh the
credibility of the witnesses, and he or she is entitled to believe all, part, or
none of the evidence presented.” Commonwealth v. Snell, 811 A.2d 581,
584 (Pa.Super. 2002), appeal denied, 820 A.2d 162 (Pa. 2003) (citation
omitted).
With respect to vehicle stops based on suspected violations of the
motor vehicle code, Section 6308(b) of the Vehicle Code provides:
(b) Authority of police officer.--Whenever a
police officer is engaged in a systematic
program of checking vehicles or drivers or has
reasonable suspicion that a violation of this
title is occurring or has occurred, he may stop
a vehicle, upon request or signal, for the
purpose of checking the vehicle’s registration,
proof of financial responsibility, vehicle
identification number or engine number or the
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driver’s license, or to secure such other
information as the officer may reasonably
believe to be necessary to enforce the
provisions of this title.
75 Pa.C.S.A. § 6308(b).
In Commonwealth v. Feczko, 10 A.3d 1285 (Pa.Super. 2010), this
court further explained the state of the law with respect to vehicle stops:
Mere reasonable suspicion will not justify a vehicle
stop when the driver’s detention cannot serve an
investigatory purpose relevant to the suspected
violation. In such an instance, “it is encumbent [sic]
upon the officer to articulate specific facts possessed
by him, at the time of the questioned stop, which
would provide probable cause to believe that the
vehicle or the driver was in violation of some
provision of the Code.” [Commonwealth v.]
Gleason, 785 A.2d [983] at 989 [(Pa. 2001)].
Id. at 1291 (emphasis in original).
Appellant acknowledges that Officer Kiefer testified that he made the
traffic stop based on Officer Kiefer’s belief that appellant made an extremely
wide right turn and traveled in an opposite lane until he moved back into the
proper lane. This testimony satisfies the requirements of Section 6308 and
Feczko in that Officer Kiefer had probable cause to stop the vehicle based
on his evaluation that at least one violation of the Vehicle Code had
occurred. Further, Officer Kiefer’s credible testimony supported the findings
of the trial court.
Appellant asks this court to accept the testimony of Globicki and his
observations of the video and to reject the testimony of Officer Kiefer. This
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court is not the fact-finder and cannot make its own credibility
determinations. Snell, 811 A.2d at 584. Therefore, appellant’s argument
fails. Further, appellant admits that Globicki’s testimony clearly contradicts
Officer Kiefer’s. In Hughes, this court explained that, when reviewing the
denial of a suppression motion, we may consider the evidence of the
Commonwealth as verdict winner and only evidence from the appellant that
does not contradict the Commonwealth’s evidence. Because Globicki’s
testimony contradicts that of Officer Kiefer with regard to whether
appellant’s vehicle stayed in the proper lane, this court may not consider it.
Hughes, 908 A.2d at 927.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2016
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