Commonwealth v. Houck

J-S29039-12

2014 PA Super 213

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ROBERT HOUCK

Appellant No. 2709 EDA 2011

Appeal from the Judgment of Sentence July 28, 2011
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000282-2010

BEFORE: GANTMAN, J., FITZGERALD, J. * and PLATT, J.**

OPINION BY GANTMAN, J.: FILED SEPTEMBER 26, 2014

Appellant, Robert Houck, appeals from the judgment of sentence

entered in the Pike County Court of Common Pleas, following his jury trial
1
We affirm.

The trial court opinion set forth the relevant facts of this case as

follows:

On March 21, 2010[,] Trooper Ives was on patrol working
from three p.m. to eleven p.m. Trooper Ives was traveling
on Roemersville Road in Greentown, Pike County, when he
came behind a large Ford pickup truck. Traveling behind
the truck for approximately two miles, Trooper Ives
observed the vehicle weaving across the lane of travel
____________________________________________

1
75 Pa.C.S.A. § 3802(b). To the extent the certified record indicates

be corrected.

_____________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-S29039-12

crossing the double yellow line and onto the fog line for
some distance before Trooper Ives activated his lights.

Trooper Ives identified Appellant as the person driving the
vehicle. He then approached the vehicle and after
initiating a conversation with Appellant detected an odor of

Appellant indicated that he had [drunk] two beers.
Trooper Ives transported Appellant, in custody, back to the
Pennsylvania State Police barracks.

Trooper Ives stopped Appellant at 20:32 and began to
transport Appellant back to the barracks at 21:19. At the
barracks, Trooper Ives read Appellant his Implied Consent
Warnings, after which Appellant agreed to give a breath
sample.

Appellant blew into the Data Master DMT which is
approved in the Commonwealth for purposes of performing
blood alcohol concentration tests. Prior to administering
the test, Trooper Ives observed [Appellant] for twenty
minutes to determine that he had not vomited or smoked
or consumed alcohol.

Trooper Ives also was required to run a blank test with
Appellant in an adjacent room. Between the two rooms is
a two way mirror so Appellant could be observed, and
Appellant was no more than five to ten feet from Trooper
Ives. Given the arrangement of the rooms, Trooper Ives
admitted that he could not observe Appellant while Trooper
Ives was running the blank test. However, when entering
the room, Trooper Ives did not see any indications that
Appellant drank an alcoholic beverage or had smoked or
vomited. The test was reported on the machine as 20:34.
Trooper Ives determined the time stamp on the machine
was incorrect and left a note for his supervisor. Trooper
Ives noted that the correct time of the test was 21:34.

There were two samples of Appella
night: the first registered a 0.170 per cent; the second
registered a 0.171 per cent. As Trooper Ives is required
by law to take the lower sample, the final result of

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Trooper Kevin Varco, is the Maintenance Officer for the
Data Master DMT. He testified regarding the various

accuracy. The machine was tested for accuracy on March
He also

failure in adjusting it to daylight saving's time.

Gifford testified that the condition of Roemersville Road is
rated as the worst it could be. The road is in deplorable
condition with pot holes. He also testified that people
drive over the center lines in order to avoid the hazards on
the road. However, he could not testify as to how the
alcohol
concentration.

Trooper Ives was recalled for rebuttal and testified that he

of the road that Appellant could have safely kept his
vehicle in the lane of traffic and there were several areas
that the road was in good condition in which Appellant did
not have to cross the center lines in order to drive safely.
With that both sides rested.

(Trial Court Opinion, dated December 5, 2011, at 1-4). We add the

following from the certified record. The Commonwealth charged Appellant

with one count of DUI under 75 Pa.C.S.A. § 3802(c) and two summary

traffic offenses. Appellant filed a motion to suppress the traffic stop for lack

of reasonable suspicion/probable cause, which the court denied after a

hearing. The case proceeded to a jury trial on Count 1, Section 3802(c)

DUI; the parties agreed the court would adjudicate the summary offenses.

At the close of the trial, the court instructed the jury to first determine

if Appellant had driven his vehicle and, within two hours of driving, Appellant

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to that inquiry, the court instructed the jury to select the highest BAC range

that the Commonwealth had proven beyond a reasonable doubt: 0.08% to

0.09%; 0.10% to 0.159%; or 0.16% and above. The verdict slip contained

identical instructions. Significantly, Appellant did not object to the jury

charge or to the verdict slip. On May 18, 2011, the jury found Appellant

guilty of DUI of 0.08% or higher and selected a BAC range of 0.10% to

0.159%. Appellant did not object to that verdict when entered. The court

also found Appellant guilty of the summary offenses of careless driving and

driving on roadways laned for traffic.

Over two months later, Appellant filed a motion for extraordinary relief

at sentencing on July 28, 2011. Appellant asserted the Commonwealth had

charged him with only one count of DUI (BAC in excess of 0.16%) under

0.10% and 0.159% meant that the jury had actually acquitted Appellant of

range lower than charged, Appellant asked the court to enter a verdict of

See Motion for

Extraordinary Relief, filed 7/28/11, at 1-2.) The court denied the motion.

The court then sentenced Appellant to thirty (30) days to

imprisonment, plus fines and costs covering the DUI and summary

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pending an appeal, provided an appeal was timely filed. Appellant timely

filed a post-sentence motion on August 4, 2011, asserting essentially the

same challenge to his DUI conviction and sentence. Following a hearing on

the post-sentence motion, on September 6, 2011, the court denied the

motion.2 Appellant timely filed a notice of appeal on October 5, 2011. On

October 11, 2011, the court ordered Appellant to file a concise statement of

errors complained on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

timely complied on November 1, 2011.

Appellant raises three issues for our review:

DID THE TRIAL COURT [ERR] WHEN IT REFUSED TO
ENTER A VERDICT OF NOT GUILTY AS IT EFFECTIVELY DID
S FINDING OF FACT THAT
APPELLANT DID NOT HAVE A BLOOD ALCOHOL CONTENT
OF 0.160% OR HIGHER, A NECESSARY ELEMENT OF
COUNT I?

DID THE TRIAL COURT COMMIT ERROR WHEN IT ENTERED
A VERDICT NOT SUPPORTED BY SUFFICIENT EVIDENCE IN
FINDING OF FACT?

DID THE TRIAL COURT COMMIT ERROR IN HOLDING THAT
PROBABLE CAUSE EXISTED TO TAKE APPELLANT INTO
CUSTODY, SUBJECT HIM TO A BREATH TEST AND
SUBSEQUENTLY ADMITTING THE BREATH TEST AFTER THE
EVIDENCE SHOWED THE SAME TO BE UNRELIABLE?

____________________________________________

2
Appellant requested and included in the certified record only the trial
transcript; he did not request or include transcripts from the suppression,
sentencing, or post-sentence motion hearings.

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In issues one and two, Appellant argues the Commonwealth charged

him with only one count of DUI, under Section 3802(c), which requires proof

beyond a reasonable doubt that, within two hours of driving, Appellant had a

BAC of 0.16% or higher. Appellant claims the criminal information did not

list a charge under Section 3802(b), where the BAC is between 0.10% and

was inconsistent with a conviction under Section 3802(c), which requires a

BAC of 0.16% or higher. Appellant complains the Commonwealth did not

move to amend the information to include the lower BAC levels. Appellant

precludes a conviction under Section 3802(c) as a matter of law, because

the jury effectively convicted Appellant of Section 3802(b) DUI, an offense

ict

on the only charge in the information. Appellant rejects any notion that the

guilty verdict on Section 3802(b) DUI was permissible as a conviction of a

- Commonwealth v. Jackson,

82 Pa. D. & C.4th 225 (Crawford County 2007) to suggest that a Section

3802(b) offense cannot be a lesser-included offense of a Section 3802(c)

t of an

inconsistent or compromise verdict, because Appellant was charged with

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only one offense.

Appellant further maintains the jury specifically determined the

evidence did not prove one of the necessary elements of Section 3802(c) as

charged, i.e., a

vidence was

insufficient to support an element of the crime charged. For these reasons,

Appellant concludes his conviction is at odds with the crime charged; and the

court should have set aside the verdict. We disagree.

When examining the sufficiency of evidence:

admitted at trial in the light most favorable to the verdict
winner, there is sufficient evidence to enable the fact-
finder to find every element of the crime beyond a
reasonable doubt. In applying [this] test, we may not
weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts
re -
finder 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. The Commonwealth
may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above
test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the [finder]
of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all,
part or none of the evidence.

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J-S29039-12

Commonwealth v. Barnswell Jones, 874 A.2d 108, 120-21 (Pa.Super.

2005) (quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

The Crimes Code defines the relevant offense of DUI as follows:

§ 3802. Driving under influence of alcohol or
controlled substance

(a) General impairment.

(1) 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 is rendered incapable of safely driving,
operating or being in actual physical control of the
movement of the vehicle.

(2) 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

breath is at least 0.08% but less than 0.10% within
two hours after the individual has driven, operated or
been in actual physical control of the movement of
the vehicle.

(b) High rate of alcohol. 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 alcohol concentration in the

than 0.16% within two hours after the individual has
driven, operated or been in actual physical control of the
movement of the vehicle.

(c) Highest rate of alcohol. 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 alcohol concentration in the
0.16% or higher within two

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J-S29039-12

hours after the individual has driven, operated or been in
actual physical control of the movement of the vehicle.

75 Pa.C.S.A. § 3802.

Established Pennsylvania law states a defendant can be convicted of a

crime that was not actually charged when the uncharged offense is a lesser-

included offense of the charged crime. See Commonwealth v. Sims, 591

Pa. 506, 919 A.2d 931 (2007) (citing Commonwealth v. Carter, 482 Pa.

lesser-

included offense, the defendant will have been put on notice of the charges

Commonwealth v.

Reese, 725 A.2d 190, 191 (Pa.Super. 1999), appeal denied, 559 Pa. 716,

740 A.2d 1146 (1999). At the heart of this issue is whether the defendant

had fair notice and an opportunity to present an adequate defense.

Commonwealth v. Pemberth

end has frequently been achieved in one of two ways: either the

Commonwealth will give an accused express notice by charging him with the

less culpable offense or it will give him implicit notice through the

information where the proven, but uncharged crime is a lesser-included

Id.

lesser-included offense: the statutory-elements approach, the cognate-

pleadings approach, and the evidentiary approach. Sims, supra at 517,

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J-S29039-12

919 A.2d at 938. The Supreme Court summarized these approaches as

follows:

The statutory-elements approach began at common law
and is used in the federal courts and in various state
courts. Under this approach, the trial court is required to
identify the elements of both the greater charge and the
lesser charge and determine whether it is possible to
commit the greater offense without committing the lesser
offense. If it is not possible, then the lesser offense is
considered a lesser-included offense of the greater crime.

Pursuant to the cognate-pleading approach, there is no
requirement that the greater offense encompass all of the
elements of the lesser offense. Rather, it is sufficient that
the two offenses have certain elements in common. The
focus of this approach is on the pleadings as the trial court
must determine whether the allegations in the pleadings
charging the greater offense include allegations of all of
the elements of the lesser offense. If so, the lesser charge
is considered a lesser-included offense of the greater
charge. As this approach centers on the pleadings of the
case, notice and due process violations are not generally
grave concerns.

Finally, the evidentiary approach looks to the actual
evidence established at trial to assess the relationship
between the greater and lesser charges. The lesser
offense may have elements that are distinct from the
greater offense and still be considered a lesser-included
offense, as long as the evidence presented at trial to prove
the greater offense actually establishes the elements of the
lesser offense. Generally, courts adopting this approach
require that the same underlying conduct establish the
elements of both offenses.

Sims, supra at 517-518, 919 A.2d at 938. Sims held the defendant could

charged the defendant only with the completed offense, because the attempt

crime was a cognate offense of the completed crime. Id. at 524, 919 A.2d

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J-S29039-12

at 942. Sims represents the proposition that a jury can convict a defendant

of an uncharged lesser-included offense but not of an uncharged greater

offense. Id. See, e.g., Commonwealth v. Haight, 50 A.3d 137

(Pa.Super. 2012) (affirming conviction for uncharged Section 3802(b) as

cognate offense of charged Section 3802(c), where defense strategy called

into question accuracy of blood test results; defense strategy led to

conviction under Section 3802(b)); Commonwealth v. Sinclair, 897 A.2d

1218, 1222 (Pa.Super. 2006) (ensuring consistency in case law to declare

Section 3802(b) as cognate offense of Section 3802(c), where case arose

from same facts already known to defendant and offenses involved same

basic elements).

Additionally, the trial court is required to instruct the jury as to the

applicable law of the case. Commonwealth v. Washington, 549 Pa. 12,

700 A.2d 400 (1997), cert. denied, 524 U.S. 955, 118 S.Ct. 2375, 141

L.Ed.2d 742 (1998). A jury charge on a lesser-included offense is

permissible so long as it does not offend the evidence presented, i.e., there

is some disputed evidence concerning an element of the greater

charge or the undisputed evidence is capable of more than one rational

inference. Commonwealth v. Hawkins, 614 A.2d 1198, 1203 (Pa.Super.

1992) (en banc). If a rational jury, given the record evidence, can find the

defendant guilty of the lesser-included offense, the court should instruct the

jury on the law of the lesser-included offense. Commonwealth v. Ferrari,

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593 A.2d 846, 848 (Pa.Super. 1991), appeal denied, 533 Pa. 607, 618 A.2d

398 (1992). See also Commonwealth v. Phillips, 946 A.2d 103, 110

(Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009), cert.

denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (reiterating

jury charge on lesser-included offense should be given if record evidence

would reasonably support verdict on lesser offense).

Moreover, the failure to make a timely and specific objection before

the trial court at the appropriate stage of the proceedings will result in

waiver of the issue. See Commonwealth v. Shamsud-Din, 995 A.2d

1224, 1226 (Pa.Super. 2010) (reiterating failure to object to jury instruction

constitutes waiver of error in charge); Commonwealth v. duPont, 730

A.2d 970, 984-85 (Pa.Super. 1999), appeal denied, 561 Pa. 669, 749 A.2d

466 (2000), cert. denied, 530 U.S. 1231, 120 S.Ct. 2663, 147 L.Ed.2d 276

(2000) (stating failure to object to particular verdict sheet constitutes waiver

of its use).

Well-settled Pennsylvania law permits inconsistent verdicts, provided

sufficient evidence supports the conviction. Commonwealth v. Miller, 613

Pa. 584, 35 A.3d 1206 (2012); Commonwealth v. King, 990 A.2d 1172,

1178 (Pa.Super. 2010), appeal denied, 617 Pa. 624, 53 A.3d 50 (2012);

Commonwealth v. Trill, 543 A.2d 1106, 1111 (Pa.Super. 1988), appeal

denied , while

often perplexing, are not considered mistakes and do not constitute a basis

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Commonwealth v. Rose, 960 A.2d 149, 158 (Pa.Super.

2008), appeal denied, 602 Pa. 657, 980 A.2d 110 (2009) (citation omitted).

preted as a specific finding in relation to some

Miller, supra at 596, 35 A.3d at 1213.

Instantly, the Commonwealth charged Appellant with one count of DUI

under Section 3802(c), plus related summary offenses, and presented

evidence th

within two hours of the traffic stop. At trial, the defense disputed the BAC

level by challenging the accuracy of the testing machine because it had not

been adjusted for daylight savings time. Counsel sought to characterize the

time calibration as suggestive of a malfunction of the testing equipment to

instructions allowed the jury to decide if the Commonwealth had proved

Appellant was DUI and, if so, to select from one of three separate BAC

ranges according to the evidence presented at trial. The jury found

Appellant guilty of DUI with a BAC between 0.10% and 0.159%, a range

consistent with Section 3802(b). Appellant did not object to the verdict

when entered.

of his conviction, the trial court reasoned as follows:

Pursuant to 75 Pa.C.S.A. § 3802(c), an individual may not
drive, operate, or be in actual physical control of the
movement of a vehicle after imbibing a sufficient amount

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is 0.16 per cent or higher within two hours after the
individual has driven, operated or been in actual physical
control of the movement of the vehicle. Appellant argues
in essence that this [c]ourt erred in not concluding that the
jury acquitted Appellant of the charge of driving under the

was below 0.160 per cent. However, this [c]ourt finds the
verdict to be similar to an inconsistent or compromise
verdict and not a basis for reversal.

* * *

Viewing the evidence in the light most favorable to the
Commonwealth and drawing all reasonable inferences
therefrom, the jury was justified in concluding that
Appellant operated a vehicle after imbibing a sufficient
amount of alcohol that the alcohol concentration in his
breath was not less than 0.10 per cent and not more than
0.159 per cent. Trooper Ives testified that he followed

subsequently administered the breath test in accordance
with the laws of the Commonwealth. The test result was a
0.170 per cent concentration. This is more than sufficient
to allow the jury to determine the elements of the above
offense beyond a reasonable doubt.

Given the cross-
this [c]ourt recognizes that apparently the jury may not
have felt comfortable with the complete accuracy of the
test or the manner in which it was administered, however,
it is for the jury to decide as the finder of fact and assessor
of credibility whom to believe and how to weigh the
evidence.

Further, the jury was given choices on the verdict for
establi
fact that the jury chose a BAC below 0.16 per cent despite
the claim in the criminal information that this BAC was
over 0.16 per cent represents a decision of the jury based
upon the fact[s] presented. The jury was free to weigh the
evidence and conclude for itself what the evidence proved
and what they were satisfied was proven by that evidence.
Inconsistent verdicts or compromise verdicts are not a
basis for reversal.

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(Trial Court Opinion at 5-7) (internal citations omitted). Here, the

Commonwealth charged Appellant with one count of DUI under Section

3802(c). Usually, inconsistent verdicts involve multiple counts. See Rose,

supra at 157-58 (reiterating general principle that inconsistent verdict

occurs when findings of fact with respect to one charge are seemingly

incompatible with findings of fact on separate charge). Although the

generally un

In general, Section 3802(c) forbids an individual to drive, operate or

be in actual physical control of the movement of a vehicle after imbibing a

sufficient amount of alcohol such that the alcohol concentration in the

individual has driven, operated or been in actual physical control of the

movement of the vehicle. See 75 Pa.C.S.A. § 3802(c). As the relevant

statute makes clear, Section 3802(c) includes all of the elements of Section

3802(b), notwithstanding the ranges provided in the two sections, because a

BAC of 0.16% necessarily subsumes all lesser BAC ranges as set forth in

Section 3802(b) and Section 3802(a)(2). In other words, an individual with

a BAC of 0.16% or above will unavoidably have a BAC of at least 0.08% to

0.159%. Applying the three methods of Sims, supra, under the statutory

elements approach to lesser-included offenses, it is not possible to commit a

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Section 3802(c) offense without committing a Section 3802(b) offense.

Under the cognate pleading approach to lesser-included offenses, an

allegation of Section 3802(c) includes the elements of Section 3802(b).

Finally, under the evidentiary approach to lesser-included offenses, we look

to the actual evidence established at trial to assess the relationship between

the greater charge and the lesser offense. Although the lesser offense of

Section 3208(b) may call for a BAC range lower than the range in the

greater offense of Section 3802(c), Section 3802(b) can still be considered a

lesser-included offense, because the evidence at trial to prove the Section

3802(c) offense established the elements of the Section 3802(b) offense.

Consistent with courts adopting this approach, here the same underlying

conduct established the elements of both offenses. See Sims, supra. The

jury was therefore free to convict Appellant under Section 3802(b), even

where the Commonwealth charged only Section 3802(c), as the record

evidence at trial reasonably supported a verdict on the lesser offense of

Section 3802(b). See Haight, supra.

Jackson case from Crawford

County is misplaced for the following reasons. In Jackson, the defendant

was charged with DUI at Sections 3802(a)(1) and 3802(c), based on a blood

serum test result of 0.30%. The defendant asked for a jury instruction on

Section 3802(a)(2) and Section 3802(b) as lesser-included offenses, which

the court denied. Without any analysis, the court concluded the offenses

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cautionary disclaimers appearing elsewhere on the website. It is clearly not

Jackson, supra at 229-30.

evidence presented could be viewed as supporting a conviction of a lower

BAC level such that it was error for the trial court to refuse, upon request, to

presented his issue in terms of a requested and denied jury instruction. This

Court said:

Appellant argues that, given his body weight and
eyewitness testimony as to the amount of alcohol he
consumed during the course of the evening in question,
the jury could have concluded that his BAC was low
enough to be convicted under § 3802(a)(2) or (b).

Appellant testified that he was unsure how much he had to
drink on the night in question, though it was probably six

not all people metabolize alcohol at the same rate,
depending upon how often they drink. Also, the visible
effects of intoxication at a given BAC can vary from person
to person. Appellant introduced a chart created by the
Pennsylvania Liquor Control Board indicating that an

consumed six or seven beers would have a BAC of less
than 0.16%.

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testimony summarized above, we do not believe the record
contained any basis upon which a jury may find a precise
BAC for Appellant other than the one offered by the
Commonwealth. Sections 3802(a)(2) and (b) depend

conviction under either of those two provisions would have
been based on conjecture. On the facts presented in
this case, the jury could convict Appellant under §
3802(c) or not at all.

Commonwealth v. Jackson, No. 1342 WDA 2007, unpublished

memorandum at 3-4 (Pa.Super. filed on December 9, 2008) (emphasis

added). This Court concluded the defendant was not entitled to a jury

instruction based on speculation. Both the trial court and this Court

recognized that the defendant in Jackson had not properly contradicted the

3802(b) would have offended the evidence presented at trial; and no

rational jury could have found the defendant guilty of a lesser offense than

the one charged.3 See Washington, supra; Phillips, supra; Hawkins,

supra; Ferrari, supra. Under the circumstances of the present case,

Jackson is neither persuasive nor dispositive.

____________________________________________

3
To the extent the Jackson trial court and this Court on appeal suggested
Sections 3802(a)(2) and 3802(b) were not lesser-included offenses of
Section 3802(c), those decisions have no precedential value. See
Commonwealth v. Phinn, 761 A.2d 176, 179 (Pa.Super. 2000), appeal
denied, 567 Pa. 712, 785 A.2d 89 (2001) (reiterating rule that published
decisions of Courts of Common Pleas and unpublished memorandum
decisions of this Court lack precedential value beyond law of case as to
parties directly involved).

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iminal

defense claim on direct appeal, if successful, will result in some effect upon

order. But, that does not convert all claims into sentencing claims, much

less into claims th

the evidence claim, if successful, will result in a vacatur of sentence and

outright acquittal; but, the Court has never held that such claims are non-

waivable merely because of the relief involve Commonwealth v.

Spruill, ___ Pa. ___, ___, 80 A.3d 453, 461-62 (2013). Here, Appellant did

not make a contemporaneous objection to the jury instruction, the verdict

sheet, or the verdict. Under Spruill, Appellant arguably waived for purposes

of this appeal his claim of error respecting the verdict. See id. As a result,

we conclude Appellant is not entitled to relief on his first or second issues.

In his third and last issue, Appellant argues Trooper Ives executed an

illegal vehicle stop. Notwith

police lacked probable cause to arrest Appellant (see

Appellant states the real issue here is whether reasonable suspicion actually

existed to support the stop. (See id. at 15.) Appellant concedes the best

evidence of his driving on the night in question is the dash cam tape of

Trooper Ives following Appellant over a period of just less than 4 minutes,

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when Appellant crossed the centerline four (4) times, rode the centerline

(12) times and crossed the fog line two (2) times. Nevertheless, Appellant

claims this evidence is not determinative of the issue. Notably, avers

Appellant, when Trooper Ives conversed with Appellant on the tape, the

Appellant contends the tape would lead one to agree with Trooper Ives, if

one could ignore the readily apparent poor condition of the road. To

highlight the condition of the road, Appellant called Skip Gifford to testify at

trial. Mr. Gifford is a 36-year veteran of the Department of Transportation

and a nearly 50-year resident of the area immediately served by

Roemersville Road described the road

Appellant, he was forced to cross both the center and the fog lines due to

potholes and ragged edges in the road. Appellant characterizes his actions

as ordinary driving maneuvers necessitated by poor road conditions. Given

the road conditions, Appellant insists he was not violating the Motor Vehicle

Code, and Trooper Ives lacked justification for the traffic stop. Appellant

concludes the court erred in refusing to suppress all evidence which flowed

from the illegal traffic stop. We cannot agree.

Appellate review of the denial of a suppression motion involves the

following principles:

Our standard of review in addressing a challenge to a trial

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determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.

[W]e may consider only the evidence of the
prosecution 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 record
supports the findings of the suppression court, we
are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based
upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc

Commonwealth

v. Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth

v. Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).

Section 6308 of the Motor Vehicle Code provides:

§ 6308. Investigation by police officers

* * *

(b) Authority of 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

responsibility, vehicle identification number or engine

information as the officer may reasonably believe to be
necessary to enforce the provisions of this title.

* * *

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75 Pa.C.S.A. 6308(b) (emphasis added).

expectation of investigatory results, the existence of reasonable suspicion

learning

additional relevant information concerning the suspected criminal activity,

the stop cannot be constitutionally permitted on the basis of mere

Commonwealth v. Chase, 599 Pa. 80, 92, 960 A.2d 108, 115

[Section] 6308 reflects this very intent.

Stops based on reasonable suspicion are allowed for a stated investigatory

75 Pa.C.S. §

6308(b). This is conceptually equivalent to the purpose of a Terry4stop. It

does not allow all stops to be based on the lower quantum it merely allows

this for investigatory stops, consistent with the requirements of both federal

and state

[Section] 6308 as merely eliminating the statutory requirement of a greater

level of information for a stop under the Vehicle Code than is constitutionally

required for all other stops. As su Id. at 94-

95, 960 A.2d at 116.

articulate specific observations which, in conjunction with reasonable

____________________________________________

4
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

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inferences derived from these observations, led him reasonably to conclude,

in light of his experience, that criminal activity was afoot and the person he

Commonwealth v. Fulton, 921

A.2d 1239, 1243 (Pa.Super. 2007), appeal denied, 594 Pa. 686, 934 A.2d 72

(2007) (quoting Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa.Super.

2006)).

[T]o determine whether the police officer had reasonable
suspicion, the totality of the circumstances must be
considered. In making this determination, we must give

police officer] is entitled to draw from the facts in light of
his experience. Also, the totality of the circumstances test
does not limit our inquiry to an examination of only those
facts that clearly indicate criminal conduct. Rather, even a
combination of innocent facts, when taken together, may
warrant further investigation by the police officer.

Fulton, supra at 1243 (quoting Commonwealth v. Hughes, 908 A.2d

924, 927 (Pa.Super. 2006)) (internal citations and quotation marks

omitted). If an objective view of the facts indicates an officer had specific,

articulable facts to support the investigative stop, the law deems the stop

reasonable. Chase, supra at 92, 960 A.2d at 114.

Additionally, well-

court is limited to considering only the materials in the certified record when

Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.Super.

2006) (en banc), appeal denied, 591 Pa. 663, 916 A.2d 632 (2007). Where

the appellant has not made the transcript of the proceedings at issue a part

of the certified record, we have said:

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J-S29039-12

With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any
transcript necessary to permit resolution of the issues

1911, any claims that cannot be resolved in the absence of
the necessary transcript or transcripts must be deemed
waived for the purpose of appellate review.

Id. at 7.

Of course, if a party is indigent, and is entitled to

will not be assessed costs. But, that does not absolve the
appellant and his lawyer of his obligation to identify and
order that which he deems necessary to prosecute his
appeal. The plain terms of the Rules contemplate that the
parties, who are in the best position to know what they
actually need for appeal, are responsible to take
affirmative actions to secure transcripts and other parts of

his own failures. Instead, it is only when an appellant can
show that a request was made and erroneously denied,
which is not the case herein, that such a claim would have
rt of claim ripens, and should be
pursued upon, the very appeal that supposedly was

Commonwealth v. Lesko, 609 Pa. 128, 237-38, 15 A.3d 345, 410 (2011).

If the defendant is appealing the denial of a suppression motion and fails to

have the suppression hearing transcript made part of the appellate record,

we can take such action as we deem appropriate, including dismissal of the

issue. Commonwealth v. Dennis, 618 A.2d 972 (Pa.Super. 1992), appeal

denied, 535 Pa. 654, 634 A.2d 218 (1993).

Instantly, Appellant filed a notice of appeal on October 5, 2011,
th
day of

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September, 2011, denying his Post-Trial/Post-Sentencing Motion as well as

the Sentence pronounced on July 28, 2011, and the denial of his Motion for

Extraordinary Relief and the entry of the verdict on the 18 th of May, 2011,

and the denial of his Pre- See Notice of Appeal, filed

10/5/11.) In the same document, Appellant reque

of the Trial held in the above captioned case which occurred on May 18,

See id.) Consistent with this request, the trial transcript is the

concerning suppression error based on the legality of the stop is arguably

waived.

Nevertheless, the trial court issued contemporaneous findings, based

on the motion to suppress and the hearing, in relevant part as follows:

The defendant claims the police lacked reasonable

stop and subsequent investigative detention of the
defendant was improper and all evidence derived
therefrom should be suppressed. The critical piece of
evidence admitted in this matter is a video tape taken
from the dashboard of the police vehicle which depicts the
observations made by the police officer prior to the initial
stop. The applicable period of time relevant to these
proceedings occurs on the video disc between one minute
and 17 seconds and four minutes and 56 seconds
representing the period of time the arresting officer was
behind the defendant in close proximity to observe the
defendant driving prior to the point where the arresting
officer actually activated his emergency lights to pull the
defendant over. Between the times of one minute 17
seconds and four minutes 56 seconds, a time comprised of
approximately 3¾ minutes, the defendant crossed over the

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line at least 12 times and crossed over the fog line with
the passenger tires at least twice.

The road in question is a two lane road with double yellow
centerline and white fog line. The road is paved but
appears to have been repaired on multiple occasions and,
as a result, appears to be only in fair condition. In
addition, the road has several moderate curves to the left

lane of traffic occur on these curves.

The question then becomes whether or not approximately
18 moderate lane violations within a period of 3¾ minutes
constitutes a reasonable basis for a police officer to pull
over the defendant. On review of the video tape, this

motor vehicle th
reaction in pulling over the defendant. Certainly, the

centerline or fog line not can the multiple lane deviations
simply be blamed upon the condition of the road. Based
upon the observations of the police officer, this [c]ourt
concludes that the officer had a reasonable suspicion to
stop the vehicle and therefore the evidence obtained as a
result of the stop should not be suppressed.

(Order Denying Appe -

2). Appellant does not dispute these facts; he objects only to the conclusion

drawn from the facts. The court observed that Trooper Ives followed

efore initiating a traffic

stop. During that time, Trooper Ives watched Appellant cross the centerline

four times, drive on the centerline twelve times, and cross the fog line twice.

The police vehicle contained a video camera that recorded the entirety of

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J-S29039-12

This Court has consistently rejected challenges to traffic stops in cases

where police observed a driver operate his vehicle in an erratic manner by

veering over the center and fog lines. See Fulton, supra at 1243 (holding

reasonable suspicion of violation of Motor Vehicle Code existed when police

saw vehicle swerve out of lane of travel three times in 30 seconds);

Commonwealth v. Cook, 865 A.2d 869, 874 (Pa.Super. 2004), appeal

denied, 584 Pa. 672, 880 A.2d 1236 (2005) (concluding officer had

reasonable suspicion for traffic stop where vehicle drifted over fog line three

times and then jerked back into la

this issue attempts to re-

efforts do not disprove the fact that his manner of driving gave Trooper Ives

reasonable suspicion for the traffic stop. Consequently, we conclude the

Based on the foregoing, we hold Section 3802(b) of the DUI statute

was a lesser-included offense of Section 3802(c), given the facts established

at trial. Further, the trial court proper

suppress. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

*JUDGE PLATT JOINS THIS OPINION.

**JUSTICE FITZGERALD FILES A DISSENTING OPINION.

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J-S29039-12

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2014

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