Com. v. Phelan, K.

J-S18023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KELLEN PATRICK PHELAN
Appellant No. 1358 EDA 2016
Appeal from the Judgment of Sentence dated April 5, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003469-2015
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED AUGUST 07, 2017
Appellant Kellen Patrick Phelan appeals from the judgment of sentence
imposed after he was convicted of driving under the influence (DUI) —
general impairment, exceeding the maximum speed limit, and disregarding a
traffic lane.1 Appellant challenges the denial of his motion to suppress and
the sufficiency of the evidence to prove DUI. We affirm.
The trial court set forth the facts of this case as follows:
On December 19, 2007 at approximately 2:00 a.m., Corporal
John T. Malone of the Pennsylvania State Police was on patrol in
full uniform in a marked State Police unit traveling southbound
on Route 202 in Concord Township, Delaware County,
Pennsylvania. Corporal Malone began following a vehicle in front
of him that he believed was exceeding the speed limit. [Corporal
Malone saw the vehicle drift to the left two times, with at least
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*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. §§ 3802(a)(1), 3362, and 3309(1).
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half of the vehicle entering the left lane. N.T., 12/9/15, at 20.]
Corporal Malone, a twenty-two-year veteran of the Pennsylvania
State Police, clocked the vehicle traveling 65 miles per hour in a
properly posted 45 miles per hour zone. The vehicle was
followed for 0.7 miles and the speed was clocked for over 0.3
miles with a certified speedometer. After following the vehicle
for 0.7 miles, Corporal Malone pulled the vehicle over for
speeding.
Corporal Malone approached the vehicle to request the
driver provide identification and registration information.
Immediately upon arriving at the vehicle, Corporal Malone
smelled a strong odor of alcohol coming from the vehicle.
Corporal Malone asked [Appellant] where he was coming from
and [Appellant] responded “McKenzie[’s] Brew House.”[2]
Corporal Malone then asked [Appellant] if he had consumed any
alcoholic beverages that evening and [Appellant] did not answer
that question.
Corporal Malone then asked [Appellant] if he would exit
the vehicle. While speaking with [Appellant], Corporal Malone
detected a strong odor of an alcoholic beverage emitting from
[Appellant]’s breath and person. [Appellant’s eyes were red and
his speech was slightly slow and slurred. N.T., 12/9/15, at 57,
61.] Corporal Malone decided to further investigate to determine
if [Appellant] was safe to operate a motor vehicle.
Corporal Malone asked [Appellant] to submit to field
sobriety tests. [Appellant] refused. Corporal Malone then asked
[Appellant] to submit to a preliminary breath test (PBT). Again,
[Appellant] refused. Corporal Malone determined based upon his
observations of [Appellant] and his vast experience that
[Appellant] could not safely operate a motor vehicle on the
roadway and placed [Appellant] into custody. Corporal Malone
then advised [Appellant] of the Implied Consent Law and [placed
him under arrest] for suspicion of DUI. [Appellant] refused to
allow his blood to be drawn and signed his refusal.
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2
Corporal Malone testified that McKenzie’s Brew House is a restaurant and
microbrewery that sells alcoholic beverages. N.T., 12/9/15, at 24.
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Trial Ct. Op., 7/12/16, at 2-3. Appellant was charged with DUI, exceeding
the maximum speed limit, disregarding a traffic lane, and careless driving.
Prior to trial, Appellant filed a motion to suppress, alleging that the
police lacked reasonable suspicion and/or probable cause to stop him and
lacked probable cause to arrest him, and thus that all evidence and
statements obtained as a result of the stop and arrest must be suppressed.
The trial court held a suppression hearing on December 9, 2015, at which
Corporal Malone was the only witness who testified. A Mobile Video
Recording (MVR) from the night of the incident was also introduced into
evidence. On January 20, 2016, the trial court issued an order denying
Appellant’s motion to suppress and setting forth findings of fact and
conclusions of law.
The court concluded that the initial stop and the subsequent arrest
were lawful, stating:
Corporal Malone had reasonable suspicion that [Appellant]
was violating the motor vehicle code. Corporal Malone clocked
[Appellant]’s vehicle at 65 miles per hour in a 45 mile per hour
zone for the statutory requisite distance of 3 tenths of a mile
with a certified speedometer. The initial stop was therefore
lawful.
Upon approaching the vehicle, Corporal Malone smelled a
strong odor of an alcoholic beverage coming from inside the
motor vehicle. Upon exiting the vehicle Corporal Malone smelled
a strong odor of an alcoholic beverage coming from [Appellant].
[Appellant] told Corporal Malone that he was coming from
M[]cKenzie’s Brew House. [Appellant] refused to participate in
any field sobriety tests or to take the PBT. Those observations
provided Corporal Malone with probable cause to arrest
[Appellant] for driving under the influence of alcohol.
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Order, 1/20/16, at 9.
On February 4, 2016, the trial court held a non-jury trial. The
Commonwealth introduced, and the court admitted, the record from the
suppression hearing. The Commonwealth also presented additional
testimony from Corporal Malone. On February 8, 2016, the court found
Appellant guilty of DUI, exceeding the maximum speed limit, and
disregarding a traffic lane. The court found Appellant not guilty of careless
driving.
On April 5, 2016, the trial court sentenced Appellant to 72 hours to 6
months of confinement for DUI, a $35 fine for exceeding the maximum
speed limit, and a $25 fine for disregarding a traffic lane. On May 4, 2016,
Appellant filed a timely notice of appeal.
Appellant raises the following issues, as stated in his brief:
Whether the trial court’s findings were unsupported by the
record as to the trial court’s denial of [Appellant]’s Motion to
Suppress which alleges that no motor vehicle violation occurred
and the stop of [Appellant]’s vehicle lacked reasonable suspicion
and/or probable cause.
Was the evidence sufficient to convict [Appellant] of the crime of
Driving Under the Influence of Alcohol or a Controlled Substance
– General Impairment[,] 75 Pa.C.S. § 3802(a)(1)[,] as to the
elements of:
i) imbib[ing] a sufficient amount of alcohol; and
ii) whether [Appellant] was incapable of safe driving?
Appellant’s Brief at 4 (some formatting; footnote omitted).
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Suppression
With regard to Appellant’s suppression claim, this Court applies the
following standard of review:
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.
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 our plenary
review.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining
a ruling on a pre-trial motion to suppress.
Commonwealth v. Freeman, 150 A.3d 32, 34-35 (Pa. Super. 2016)
(citation omitted), appeal denied, No. 853 MAL 2016 (Pa. May 15, 2017).
Appellant argues that the trial court erred in denying his motion to
suppress because the initial stop was unlawful.3 Specifically, he claims that
the trial court erroneously applied the reasonable suspicion standard, rather
than the probable cause standard, to the stop, and that the Commonwealth
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3
In this appeal, Appellant has abandoned the argument, which he raised in
the trial court, that the evidence Corporal Malone obtained as a result of the
initial stop still did not provide probable cause for Corporal Malone to arrest
him. Appellant’s Brief at 4 n.1.
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failed to establish probable cause that he was speeding. See Appellant’s
Brief at 20-29. Appellant asserts that the trial court’s findings of fact are
inconsistent with the MVR from the night of the incident, which shows
Corporal Malone accelerating to catch up to Appellant. Appellant contends
that the MVR proves that Corporal Malone did not maintain a constant speed
for three tenths of a mile while clocking Appellant. Id. at 24. In addition,
Appellant argues that the Commonwealth failed to prove that Corporal
Malone had reasonable suspicion to stop him for disregarding a traffic lane
and therefore lacked grounds to investigate whether he was driving under
the influence of alcohol. See id. at 29-31.
The Commonwealth concedes, “the trial court incorrectly applied a
reasonable suspicion standard to evaluate the trooper’s ability to stop a car
for the Motor Vehicle Code violations of speeding and failing to maintain a
single lane.” Commonwealth’s Brief at 14. The Commonwealth argues,
however, that this Court may affirm on grounds different from those of the
trial court, and urges us to hold that Corporal Malone had probable cause to
stop Appellant.
We agree with the parties that the trial court erroneously concluded
that Corporal Malone needed only reasonable suspicion to stop Appellant for
speeding. “[W]hen considering whether reasonable suspicion or probable
cause is required constitutionally to make a vehicle stop, the nature of the
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violation has to be considered.” Commonwealth v. Salter, 121 A.3d 987,
993 (Pa. Super. 2015).
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 [i]ncumbent
. . . 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.
Freeman, 150 A.3d at 35 (internal quotation marks and citations omitted,
emphasis in original).
If a vehicle is stopped for speeding, the officer must possess
probable cause to stop the vehicle. This is so because when a
vehicle is stopped, nothing more can be determined as to the
speed of the vehicle when it was observed while traveling upon a
highway.
Salter, 121 A.3d at 993. Thus, the trial court erred in concluding that only
reasonable suspicion was necessary to stop Appellant for speeding.
Although the trial court applied the incorrect standard for the stop, “if
the record supports the result reached by the suppression court, we may
affirm on any ground.” Commonwealth v. Brown, 64 A.3d 1101, 1105
n.3 (Pa. Super.) (citation omitted), appeal denied, 70 A.3d 1096 (Pa.
2013). Thus, we can affirm the trial court’s denial of Appellant’s motion to
suppress if we conclude that Corporal Malone had probable cause to stop
Appellant for speeding. See id.4
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4
The trial court did not evaluate whether Corporal Malone had probable
cause to stop Appellant for disregarding a traffic lane or reasonable suspicion
(Footnote Continued Next Page)
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To determine whether probable cause exists, we must consider
whether the facts and circumstances which are within the
knowledge of the officer at the time of the arrest, and of which
he has reasonably trustworthy information, are sufficient to
warrant a man of reasonable caution in the belief that the
suspect has committed or is committing a crime.
Commonwealth v. Ibrahim, 127 A.3d 819, 824 (Pa. Super. 2015)
(citation and internal quotation marks omitted), appeal denied, 138 A.3d 3(Pa. 2016). “[P]robable cause does not require certainty, but rather exists
when criminality is one reasonable inference, not necessarily even the most
likely inference.” Salter, 121 A.3d at 994 (citation omitted).
In determining whether a person is exceeding the maximum speed
limit:
The rate of speed of any vehicle may be timed on any highway
by a police officer using a motor vehicle equipped with a
speedometer. In ascertaining the speed of a vehicle by the use
of a speedometer, the speed shall be timed for a distance of not
less than three-tenths of a mile.
75 Pa.C.S. § 3368(a). In Commonwealth v. Whitmyer, 668 A.2d 1113(Pa. 1995), the Supreme Court held that a police officer lacked probable
cause to stop the defendant for driving at an unsafe speed because, among
other reasons, the officer observed the defendant for less than the three-
tenths of a mile distance set forth in Section 3368(a). Id. at 1117.5
_______________________
(Footnote Continued)
to stop Appellant for DUI, and, in light of our holding below, it is not
necessary for us to do so in this appeal.
5
Since our Supreme Court’s holding in Whitmyer, the Vehicle Code
provision setting forth the requirements a police officer must meet in order
(Footnote Continued Next Page)
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Here, the trial court found “Corporal Malone clocked [Appellant’s]
vehicle traveling 65 miles per hour in a properly posted 45 mile per hour
zone. The vehicle was followed for 0.7 miles and the speed was clocked for
over 0.3 miles with a certified speedometer.” Order, 1/20/16, Findings of
Fact ¶ 4. Corporal Malone testified that he clocked Appellant for
approximately seven tenths of a mile before the MVR was activated.
Specifically, he testified that he began clocking Appellant at 65 miles per
hour approximately two-tenths of a mile north of Smith Bridge Road, that
Appellant accelerated when they reached Naamans Creek Road, and that the
distance between Smith Bridge Road and Naamans Creek Road is seven-
tenths of a mile. N.T., 12/9/15, at 20, 43. Corporal Malone testified that
the MVR was not activated until “right before” Naamans Creek Road. Id. at
40. It does not follow, as Appellant argues, that because Corporal Malone’s
vehicle accelerated after the MVR was activated, Corporal Malone did not
maintain a constant speed before that time. Because the trial court’s
findings of fact are supported by the record, we are bound by them. See
Freeman, 150 A.3d at 35. We hold that Corporal Malone had probable
_______________________
(Footnote Continued)
to initiate a stop of a vehicle has changed. Specifically, the former version
of 75 Pa.C.S. § 6308(b) required a police officer have “articulable and
reasonable grounds to suspect a violation” of the Vehicle Code to effectuate
a vehicle stop. The present version requires a police officer have
“reasonable suspicion” that a violation of the Vehicle Code is occurring or
had occurred in order to initiate a stop. Despite the change in language, this
Court has continued to hold that a police officer must have probable cause to
pull over a vehicle for speeding. See Salter, 121 A.3d at 993.
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cause to stop Appellant for exceeding the maximum speed limit, and we
affirm the trial court’s denial of Appellant’s motion to dismiss.6
Sufficiency of the Evidence (DUI)
In his second issue, Appellant contends that the evidence was
insufficient to support his conviction of driving under the influence – general
impairment, 75 Pa.C.S. § 3802(a)(1).7
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.
As a reviewing court, we may not weigh the evidence or
substitute our judgment for that of the fact-finder, who is free to
believe all, part, or none of the evidence.
Commonwealth v. Chambers, 157 A.3d 508, 512 (Pa Super. 2017)
(ellipses, citations, and some formatting omitted).
Subsection 3802(a)(1) of the Vehicle Code provides: “An individual
may not drive, operate or be in actual physical control of the movement of a
vehicle after imbibing a sufficient amount of alcohol such that the individual
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6
Because Corporal Malone had probable cause for the stop based on
Appellant’s speeding, we need not resolve Appellant’s alternative argument
that the corporal lacked reasonable grounds to stop Appellant for driving
across the lane line.
7
Appellant does not challenge the sufficiency of the evidence with regard to
exceeding the maximum speed limit or disregarding a traffic lane.
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is rendered incapable of safely driving, operating or being in actual physical
control of the movement of the vehicle.” 75 Pa.C.S. § 3802(a)(1). “Thus,
the Commonwealth must . . . prove: (1) that defendant was operating a
motor vehicle, (2) after imbibing a sufficient amount of alcohol such that the
individual is rendered incapable of safely driving.” Commonwealth v.
Kerry, 906 A.2d 1237, 1241 (Pa. Super. 2006). Appellant challenges only
the second element.
This Court has explained that Section 3802(a)(1) “is a general
provision and provides no specific restraint upon the Commonwealth in the
manner in which it may prove that an accused operated a vehicle under the
influence of alcohol to a degree which rendered him incapable of safe
driving.” Kerry, 906 A.2d at 1241 (citation omitted).
The types of evidence that the Commonwealth may proffer in
a subsection 3802(a)(1) prosecution include but are not limited
to, the following: the offender’s actions and behavior, including
manner of driving and ability to pass field sobriety tests;
demeanor, including toward the investigating officer; physical
appearance, particularly bloodshot eyes and other physical signs
of intoxication; odor of alcohol, and slurred speech.
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).
In its opinion, the trial court concluded that the evidence was sufficient
to prove that Appellant had imbibed a sufficient amount of alcohol such that
he was rendered incapable of safely driving. Trial Ct. Op. at 8-9. Corporal
Malone testified that Appellant was speeding and drifted out of his lane two
times. Appellant admitted that he was coming from a microbrewery when
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Corporal Malone stopped his car, and Corporal Malone testified that
Appellant’s eyes were red and his speech was slow and slurred, and that
Appellant smelled of alcohol, did not respond when asked whether he had
consumed any alcoholic beverages, and refused to take field sobriety tests
or submit to a preliminary breath test.8 Viewing the evidence in the light
most favorable to the Commonwealth, we agree with the trial court that the
evidence was sufficient to prove a violation of Subsection 3802(a)(1).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2017
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8
75 Pa.C.S. § 1547(e) provides:
In any summary proceeding or criminal proceeding in which the
defendant is charged with a violation of section 3802 or any
other violation of this title arising out of the same action, the fact
that the defendant refused to submit to chemical testing . . .
may be introduced in evidence along with other testimony
concerning the circumstances of the refusal. No presumptions
shall arise from this evidence but it may be considered along
with other factors concerning the charge.
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