J-A26038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAYMOND JOSEPH KRAYNAK
Appellant No. 2235 MDA 2013
Appeal from the Judgment of Sentence December 2, 2013
In the Court of Common Pleas of Northumberland County
Criminal Division at No(s): CP-49-CR-0000954-2012
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 14, 2014
Raymond Kraynak (“Appellant”) appeals from the judgment of
sentence entered in the Northumberland County Court of Common Pleas
following his conviction for Driving Under the Influence of Alcohol1 (“DUI”),
and challenges the trial court’s grading of the offense as well as its ruling
denying his motion to suppress. After careful review, we affirm.
We summarize the straightforward factual and procedural history as
follows. At approximately 11:00 p.m. on May 26, 2012, Appellant was
driving northbound on Route 61 in Coal Township, Northumberland County,
when he entered into an area where police were conducting a sobriety
checkpoint. Appellant, a medical doctor, claims not to have seen the
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1
75 Pa.C.S. § 3802(a)(1).
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multiple 4-foot-by-4-foot reflective road signs announcing the checkpoint.
Instead, Appellant claims that he thought he had arrived upon an accident
scene. Instead of entering the checkpoint, Appellant parked his car, exited
the vehicle, and walked over to where the police were interacting with
motorists passing through the checkpoint in order to offer aid as a physician,
if necessary. Appellant’s subsequent interactions with the police caused the
police to conduct two field sobriety tests, both of which Appellant failed.
After he refused chemical testing, police arrested Appellant and charged him
with DUI.
The trial court conducted a bench trial on August 30, 2013, and found
defendant guilty of DUI graded as a misdemeanor of the first degree. On
December 2, 2013, the trial court sentenced Appellant to 6 months of
intermediate punishment. Appellant timely appealed.
Appellant raises the following questions for our review:
A. Did the trial court commit an abuse of discretion in grading
the offense as a misdemeanor of the first degree?
B. Did the trial court commit an abuse of discretion in refusing
to afford [Appellant] a trial by jury after it concluded that the
offense would be graded a misdemeanor of the first degree?
C. Did the trial court commit an abuse of discretion in holding
that the roadblock was legal because the roadblock did not
comply with applicable requirements contained in case law?
D. Did the trial court commit an abuse of discretion in ignoring
the applicability of the PennDOT D.U.I. manual?
E. Did the trial court commit an abuse of discretion and an error
of law in determining that the checkpoint at issue “substantially
complied” with all relevant requirements?
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F. Did the trial court commit an abuse of discretion in convicting
[Appellant] of driving under the influence because the
Commonwealth did not sustain its burden of proof?
Appellant’s Brief, p. 5 (all capitals removed). For ease of disposition, we will
address these claims out of order.
1. The Checkpoint/Roadblock Claims
Appellant’s claims C, D, & E make related arguments regarding the
legality and validity of the roadblock involved in this matter and whether the
police complied with the Tarbert/Blouse2 checkpoint guidelines. See
Appellant’s Brief, pp. 5 (Claims C, D & E), 17-41. These claims do not afford
Appellant relief.
The facts of this matter do not implicate the Tarbert/Blouse
guidelines for checkpoint administration because the police did not stop
Appellant at the roadblock. Instead of entering the checkpoint, Appellant
himself voluntarily stopped his own car, approached the police, and offered
to help. Appellant explained that he did this because he thought he had
stopped at an accident scene at which his medical expertise could be of use.
Because Appellant did not suspect he was approaching a sobriety
checkpoint, he could not have been in fear of being seized at that
checkpoint. Further, he was not actually seized as a result of the
checkpoint. Instead, by parking and exiting his vehicle, approaching the
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2
Commonwealth v. Tarbert, 535 A.2d 1035 (Pa.1987); Commonwealth
v. Blouse, 611 A.2d 1177 (Pa.1992).
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police, and initiating a conversation, Appellant initiated a mere encounter
with police. He subjected himself to the sobriety investigation necessitated
by the police’s knowledge that he drove his vehicle to the scene together
with his visible signs of intoxication, to wit, weaving and staggering walk,
swaying standing gait, odor of alcohol, bloodshot eyes, flushed face, and
slurred speech. See Commonwealth v. Ragan, 652 A.2d 925, 929
(Pa.Super.1995) (determining that where police have good reason to believe
a driver is intoxicated, the police are justified in requesting that the
individual submit to sobriety testing). This voluntary mere encounter
initiated not by the police, but by Appellant himself, was independent of the
existence of the sobriety checkpoint.3 Accordingly, adherence to the
Tarbert/Blouse checkpoint guidelines is immaterial in this matter.
2. Grading of Offense as a Misdemeanor of the First Degree &
Right to Jury Trial.
Next, Appellant makes the interrelated claims that the trial court erred
in grading the DUI as a misdemeanor of the first degree and by refusing to
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3
Appellant argues that but for the roadblock, he would not have stopped.
This argument is unconvincing. Appellant’s testimony established that he
stopped voluntarily because he thought an accident had occurred. In other
words, Appellant intended stop even though he was mistaken about the
occurrence of an accident. Of course, if Appellant had been correct, and he
had approached an actual automobile accident, Appellant’s choice to stop
and offer assistance would still have subjected him to investigation and
possible arrest if the police determined he was intoxicated. See Ragan,
supra.
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allow Appellant a jury trial. See Appellant’s Brief, pp. 5 (Claims A & B), 16-
17. These claims present questions of law; thus, the scope of review is
plenary, and the standard of review is de novo. See Commonwealth v.
Arroyo, 991 A.2d 951, 955 (Pa.Super.2010).
“The right to a jury trial exists when a defendant faces a charge which,
alone, could lead to imprisonment beyond six months. By contrast, there is
no jury trial right if an offense bears a maximum incarceration of six months
or less.” Commonwealth v. Harriott, 919 A.2d 234, 237 (Pa.Super.2007)
(citing Commonwealth v. Kerry, 906 A.2d 1237, 1239, 1240
(Pa.Super.2006).
The Vehicle Code provides:
(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.
75 Pa.C.S. § 3802(a)(1). The Vehicle Code grades a first offense violation of
section 3802(a)(1) as an ungraded misdemeanor punishable by up to 6
months of imprisonment. 75 Pa.C.S. § 3803(a)(1).4 Where a first offender
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4
In fact, Section 3803(a) grades even a second offense as an ungraded
misdemeanor. See 75 Pa.C.S. § 3803(a)(1) (“An individual who violates
section 3802(a) (relating to driving under influence of alcohol or controlled
substance) and has no more than one prior offense commits a
misdemeanor for which the individual may be sentenced to a term of
imprisonment not more than six months and to pay a fine under section
(Footnote Continued Next Page)
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refuses chemical testing, the violation remains graded as an ungraded
misdemeanor punishable by up to 6 months’ imprisonment. 75 Pa.C.S. §
3803(b)(2). Where a defendant with a prior DUI conviction refuses chemical
testing, the subsequent DUI/refusal charge is graded as a misdemeanor of
the first degree. 75 Pa.C.S. § 3803(b)(4). However, to the extent that the
Vehicle Code provides that certain violations of section 3802(a) are correctly
graded as misdemeanors of the first degree,5 this Court has determined that
the Vehicle Code’s DUI grading provisions still limit the term of
imprisonment possible to a maximum of 6 months’ incarceration.6 See
Commonwealth v. Musau, 69 A.3d 754 (Pa.Super.2013).7 Accordingly,
_______________________
(Footnote Continued)
3804 (relating to penalties).”) (emphasis provided). The grading for a
violation of section 3802(a) does not increase to a misdemeanor of the
second degree until the third violation. See 75 Pa.C.S. § 3803(a)(2) (“An
individual who violates section 3802(a) and has more than one prior
offense commits a misdemeanor of the second degree.”) (emphasis
provided).
5
See 75 Pa.C.S. § 3803(b)(3), (4) & (5).
6
Crimes classified as first-degree misdemeanors are ordinarily punishable by
up to five (5) years of imprisonment. See 18 Pa.C.S. § 106(b)(6); 18
Pa.C.S § 1104.
7
We note that Pennsylvania’s Supreme Court currently holds the Musau
petition for allowance of appeal in abeyance pending its decision in
Commonwealth v. Mendez, 32 EAP 2013, in which the Supreme Court is
addressing the issue of whether “in upholding a sentence that exceeds the
statutory maximum explicitly set out in 75 Pa.C.S. § 3803, did not the
majority violate the rules of statutory construction in order to avoid what it
saw as ‘problematic consequences’ resulting from a straightforward
application of the statute?” See Commonwealth v. Mendez, 49 EAL 2013,
Order Granting Allocatur, 7/17/2013. However, this Court may not overrule
(Footnote Continued Next Page)
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regardless of the trial court’s grading of the offense, Appellant was never
exposed to a maximum possible term of incarceration exceeding 6 months,
and therefore was never entitled to a trial by jury. See Harriot, supra.
Additionally, the Musau decision is distinguishable from the instant
matter in that it involved a repeat DUI offender who refused chemical
testing. See Musau, 69 A.3d at 755-56. The court in Musau therefore
appropriately graded the DUI in that matter as a misdemeanor of the first
degree. Id. at 758; see also 75 Pa.C.S. § 3803(b)(4). Here, despite the
fact that this was Appellant’s first DUI, the trial court granted the
Commonwealth’s motion to amend the information to grade the offense as a
misdemeanor of the first degree based on the decision in Musau. This was
error, which the trial court concedes. See 1925(a) Opinion, p. 7.
Remand to re-grade this DUI, however, is not necessary. First, as the
trial court explained, Appellant suffered no sentencing prejudice from the
grading of the DUI as a misdemeanor of the first degree instead of an
ungraded misdemeanor because “the sentence actually imposed upon
[Appellant] was consistent with the grading of the offense as an ungraded
_______________________
(Footnote Continued)
another panel of the Superior Court, and Musau remains binding law. See
Commonwealth v. Beck, 78 A.3d 656, 659 (Pa.Super.2013); Marks v.
Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa.Super.2000) (despite the
Pennsylvania Supreme Court having granted a petition for allowance of
appeal, a decision remains precedential until it has been overturned by the
Pennsylvania Supreme Court).
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misdemeanor.” 1925(a) Opinion, p. 7. Additionally, no prejudice based on
an increased Prior Record Score (“PRS”) calculation will occur in the future
because a first DUI is excluded from a defendant’s PRS regardless of
grading.8 Thereafter, second or subsequent DUIs each count as one-point
offenses regardless of the DUI grading and regardless of the crime with
which the defendant then stands charged. Otherwise stated, only the
number, not the grading, of DUI convictions counts in future calculations of
PRS.
3. Sufficiency of the Evidence Claim
Lastly, Appellant claims that the Commonwealth adduced insufficient
evidence to sustain his DUI conviction because there was no direct evidence
that Appellant was incapable of safely driving, no one saw Appellant driving,
and there was no evidence of the concentration of alcohol in Appellant’s
breath or blood. See Appellant’s Brief, pp. 5 (Claim F), 41-43. This claim
lacks merit.
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
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8
See Sentencing Guideline Analysis (7th Ed.), Pennsylvania Commission on
Sentencing, pp. 137-138 (“One Point Offenses. One point is added for each
prior conviction or adjudication for the following offenses: . . . Driving Under
the Influence of Alcohol or Controlled Substance, except for a first
lifetime conviction or adjudication.) (emphasis provided).
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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 [the above] 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 regarding a
defendant’s guilt may be resolved by the fact-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
[trier] 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.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011).
As previously stated, the Vehicle Code provides:
(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.
75 Pa.C.S. § 3802(a)(1).
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. Blood
alcohol level may be added to this list, although it is not
necessary . . . The weight to be assigned these various types of
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evidence presents a question for the fact-finder, who may rely
on his or her experience, common sense, and/or expert
testimony. Regardless of the type of evidence that the
Commonwealth proffers to support its case, the focus of
subsection 3802(a)(1) remains on the inability of the individual
to drive safely due to consumption of alcohol-not on a particular
blood alcohol level.
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa.2009). Further,
“[u]nder Pennsylvania law, an eyewitness is not required to establish that a
defendant was driving, operating, or was in actual physical control of a
motor vehicle. The Commonwealth can establish through wholly
circumstantial evidence that a defendant was driving, operating or in actual
physical control of a motor vehicle.” Commonwealth v. Johnson, 833
A.2d 260, 263 (Pa.Super.2003).
The trial court summarized the trial evidence regarding Appellant’s
arrest as follows:
The Commonwealth offered the testimony of several
officers who interacted with [Appellant] at the checkpoint. These
officers have many years experience in detecting the signs of
intoxication and all offered consistent testimony concerning their
observations of [Appellant] at the roadblock. Officer Stephen
Bennick was stationed in the roadblock such that he was the
officer interacting with the motorists as they passed through the
checkpoint. He was the first officer to observe [Appellant] after
[Appellant] pulled his vehicle behind a marked police unit with its
emergency lights activated, parked[,] got out of the driver’s side
of the vehicle, walked around to the front of the vehicle and
walked up the center of [the] road on the passing lines.[9] As
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9
Despite Appellant’s claims that no one saw him driving, Officer Bennick
clearly and repeatedly testified that he observed Appellant’s vehicle park
behind a marked cruiser and that he then watched Appellant exit the vehicle
(Footnote Continued Next Page)
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[Appellant] walked up the center of the road toward Officer
Bennick, he was weaving and staggering. Once Officer Bennick
began to speak to [Appellant], the officer noted the smell of
alcohol on [Appellant’s] breath and observed that he had droopy,
bloodshot eyes and was swaying. At that time, [Appellant]
admitted to Officer Bennick that he had been drinking.
After this contact, Officer Bennick turned [Appellant] over
to Officer Matthew Henrich, who noted that [Appellant] had a
strong odor of alcohol on his breath, his speech was slurred, and
his face was flushed. Officer Henrich then conducted two field
sobriety tests with [Appellant]. During both tests, [Appellant]
failed to follow the officer’s instructions to wait until the
demonstration of the test was completed before beginning the
test himself. When [Appellant] attempted to complete the heel-
to-toe test, there were gaps between his feet, he took twelve
steps, instead of the instructed nine, and he stepped on his toes.
[Appellant] then failed to perform the one-leg stand in
accordance with the instructions given to him on his first
attempt, raising his leg such that his thigh, and not his foot, was
parallel to the ground. On his second attempt, the officer told
him to stop the test because he was afraid [Appellant] would fall.
Accordingly, [Appellant] failed both field sobriety tests
administered to him.
After being advised that he would be placed under arrest,
[Appellant] became irate and agitated, requesting to speak to
the checkpoint supervisor, Officer Ketchem, who also noted a
strong odor of alcohol on [Appellant’s] breath along with slurred
speech and swaying.
All of these observations by experienced police officers of
[Appellant’s] physical manifestations of intoxication established
beyond a reasonable doubt [Appellant’s] inability to safely
operate his vehicle due to impairment by alcohol prior to arriving
at the checkpoint.
1925(a) Opinion, pp. 5-6.
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(Footnote Continued)
from the driver’s side before approaching. See N.T. 8/30/2013, pp. 118-
121.
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Viewed in the light most favorable to the Commonwealth as verdict
winner, this evidence was sufficient to convict Appellant of DUI in violation of
section 3802(a)(1).
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2014
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