J-A15023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID HARVEY
Appellant No. 1930 EDA 2014
Appeal from the Judgment of Sentence April 21, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0008033-2013
BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 18, 2015
Appellant, David Harvey, appeals from the April 21, 2014 judgment of
sentence of 72 hours to six months of imprisonment, plus fines, imposed
after the trial court found him guilty of driving under the influence (DUI)-
schedule I controlled substance and DUI-metabolite.1 After careful review,
we affirm.
The trial court provided the following summary of the factual
background of this case.
On September 23, 2013, at approximately
8:[03] p.m., Officer Eric Barrows responded to a hit
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*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(d)(1)(i) and 3802(d)(1)(iii), respectively.
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and run accident on 207 Blue Ridge Drive in Bristol
Township, Bucks County. The radio broadcast
informed Officer Barrows that an individual involved
in the accident had a knife. Two vehicles were
involved in the accident. [Appellant] was driving his
wife’s vehicle at the time of the accident and had no
passengers. Mr. Shellenberger was driving the other
vehicle and had a female passenger. Mr.
Shellenberger caused the accident and was in
possession of the knife.
Officer Barrows smelled the marijuana when he
arrived at the scene. When Officer Barrows spoke to
[Appellant], he could smell marijuana emitting
directly from him as they talked. No one else was
standing near [Appellant] and Officer Barrows at that
time. Officer Barrows also observed that [Appellant]
had glassy eyes. Officer Barrows asked [Appellant]
twice if he had marijuana on him and [Appellant]
responded that he did not. [Appellant] was advised
that he had to remain at the scene because the
accident was a state police matter. Officer Barrows
asked [Appellant] about marijuana a third time,
warning him that the state police were on their way
and that they would discover the marijuana if it
existed. At that time, [Appellant] stated that he had
smoked marijuana forty minutes ago and had a
marijuana cigarette in the car. [Appellant] was
patted down in the presence of another officer at
that time.
At approximately 8:15 p.m., Pennsylvania
State Trooper Rachael Jones arrived at the scene,
and Officer Barrows relayed his interaction with
[Appellant] to Trooper Jones. Another officer
informed Trooper Jones that [Appellant] stated that
there was a marijuana cigarette under his driver’s
seat floor mat. Upon speaking with [Appellant],
Trooper Jones noticed that he had bloodshot eyes
and that he was speaking slowly. [Appellant] was
placed under arrest for [DUI]. The officers searched
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[Appellant’s] vehicle at that time [and recovered a
marijuana cigarette and hashish.2]
Trial Court Opinion, 9/3/2014, at 1-2.
On December 30, 2013, the Commonwealth filed an information
charging Appellant with the aforementioned offenses as well as DUI-
impaired ability, possession of a small amount of marijuana for personal use,
and use or possession with intent to use drug paraphernalia.3
On January 23, 2014, Appellant filed an omnibus pretrial motion
seeking to suppress statements made to law enforcement, any evidence
obtained from his person and vehicle, and the results of the chemical test
performed on Appellant following his arrest. Appellant’s Omnibus Pretrial
Motion, 1/23/14, at 1-3.4 Appellant also sought additional discovery in said
motion. Id. at 3. Appellant filed a supplemental motion on February 28,
2014, again seeking suppression of the evidence obtained from his person
and vehicle and additional discovery. Appellant’s Supplemental Omnibus
Pretrial Motion, 2/28/14, at 1-3. Appellant also filed a motion in limine to
exclude the testimony of law enforcement officials based on Trooper Jones’
failure to preserve a motor vehicle recording. Appellant’s Motion In Limine,
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2
N.T., 4/21/14, at 8.
3
75 Pa.C.S.A § 3802(d)(2), 35 P.S. §§ 780-113(a)(31) and 780-113(a)(32),
respectively.
4
Appellant’s pretrial motions do not contain pagination. For ease of
reference, we have assigned each page a corresponding page number.
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3/25/14, at 1-3. The trial court held a hearing on Appellant’s motions on
April 16, 2014; at which time, the trial court denied Appellant’s motion in
limine. N.T., 4/16/14, at 36. At the conclusion of testimony and argument,
the trial court deferred its ruling pending counsel’s proposed findings of fact.
The trial court reconvened on April 21, 2014 and granted Appellant’s motion
to suppress with respect to all statements made by Appellant and the
evidence obtained from Appellant’s car. N.T., 4/21/14, at 9. The trial court
concluded, however, that the Commonwealth had probable cause to arrest
Appellant for DUI. Id. The Commonwealth nolle prossed DUI-impaired
ability, the possession of marijuana, and the paraphernalia charges, and
Appellant proceeded to a stipulated-bench trial on DUI-schedule I controlled
substance and DUI-metabolite. Id. at 10-13. The Commonwealth
introduced the laboratory results from Appellant’s blood test following his
arrest, which “revealed 5 nanograms of Delta-9 THC, which would be the
active compound, and 8 nanograms of a metabolite Delta-9 carboxy THC.”
Id. at 14. The trial court found Appellant guilty of DUI-schedule I controlled
substance and DUI-metabolite and proceeded immediately to sentencing.
On April 30, 2014, Appellant filed a timely post-trial motion, which the trial
court denied on June 18, 2014. On July 11, 2014, Appellant filed a timely
notice of appeal.5
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5
Appellant and the trial court have complied with Pennsylvania Rule of
(Footnote Continued Next Page)
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On appeal, Appellant raises the following issue for our review.
Whether the denial of Appellant’s [m]otion to
[s]uppress [e]vidence based upon a failure to
establish probable cause for his arrest was proper[?]
Appellant’s Brief at 4.
When reviewing a challenge to a trial court’s denial of a suppression
motion, we adhere to the following well-established standard of review.
We may consider only the Commonwealth’s evidence
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 factual findings of the trial court, we are bound
by those facts and may reverse only if the legal
conclusions drawn therefrom are in error. An
appellate court, of course, is not bound by the
suppression court’s conclusions of law.
Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).
Appellant’s sole argument on appeal challenges the trial court’s
determination that probable cause existed for his arrest.6 Appellant’s Brief
_______________________
(Footnote Continued)
Appellate Procedure 1925.
6
We note Appellant argues that probable cause for his arrest for DUI-
metabolite is lacking when “blood shot eyes” and “slow speech” are removed
from the analysis. Appellant’s Brief at 14. He argues such factors should be
excluded because “[t]hese observations are directly contrary to [the
testimony] of Officer Barrows…” Id. at 17. However, Appellant never
identified the trial court’s credibility determinations or findings of fact in his
Rule 1925(b) statement as claims of error; as such, any such challenges are
waived on appeal. See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa.
2011) (holding Rule 1925(b) is a bright-line rule, and any issue not included
in the 1925(b) statement are waived on appeal); accord Pa.R.A.P.
1925(b)(4)(vii).
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at 14. “Both the United States and Pennsylvania Constitutions protect
citizens against unreasonable searches and seizures. U.S. Const. amend.
IV; Pa. Const. art. I, § 8. To be constitutionally valid, an arrest must be
based on probable cause.” Commonwealth v. Smith, 979 A.2d 913, 916
(Pa. Super. 2009) (citation omitted), appeal denied, 993 A.2d 901 (Pa.
2010).
Probable cause exists where the facts and
circumstances within the knowledge of the officer are
based upon reasonably trustworthy information and
are sufficient to warrant a man of reasonable caution
in the belief that the suspect has committed or is
committing a crime. In determining whether
probable cause exists, we apply a totality of the
circumstances test.
Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa. Super. 2013)
(internal quotation marks and citations omitted). “The question we ask is
not whether the officer’s belief was correct or more likely true than false.
Rather, we require only a probability, and not a prima facie showing, of
criminal activity.” Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa.
2009) (internal quotation marks and citations omitted, emphasis in original).
Appellant argues, “probable cause to arrest was not established for
driving under the impaired influence of marijuana, which was the basis for
Trooper Jones’ arrest.” Appellant’s Brief at 14. He further argues, “probable
cause did not exist for either impairment or metabolite.” Id. Appellant
supports his argument with the following reasoning.
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Trooper Jones stated [] Appellant did not cause the
accident and no evidence existed that he drove
unsafely. Field Sobriety tests were not requested.
The [trial] court did not hear any evidence of rapid
eye movement, trembling eyelids, sweating,
nervousness, fleeing the scene, erratic driving by
Appellant, or any other indicia of potential
impairment. Importantly, the trial court also did not
make a finding of fact that [] Appellant had slurred
speech; only that he was speaking slowly.
Appellant’s Brief at 15 (citations omitted). For the reasons that follow, we
disagree.
In this case, the trial court made the following findings of fact at the
conclusion of the suppression hearing.
[F]irst, Officer Barrows is a Bristol Township
police officer and has been a police officer for seven
years.
Next, on September 23[, 2013,] Officer
Barrows responded to what was broadcast [sic] as a
subject with a knife at approximately 8:03 [p.m.] in
the area of 207 Blue Ridge Drive, Bristol Township,
Bucks County.
Next, the officer later learned that there was
also a hit and run crash.
Next, Officer Barrows was in full uniform.
Next, while on scene Officer Barrows detected
an odor of marijuana and at first was not sure as to
the source of the marijuana.
Next, Officer Barrows has training and
experience in identifying the odor of marijuana.
Next [], after securing the individuals, Officer
Barrows spoke to [Appellant] and noted an odor of
marijuana emitting from him. Officer Barrows also
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noted that [Appellant] had glassy eyes. … Officer
Barrows asked [Appellant] if he had marijuana on
him, and he replied no.
Next, the officer asked [Appellant] a second
time about having marijuana, and he again denied
having marijuana.
Next, [Appellant] was told he needed to
remain at the scene because it was a state police
case.
Next, Officer Barrows told [Appellant] that the
police were on their way … and that they would find
the marijuana and it was better for him to admit it.
[Appellant] was not read his rights pursuant to
Miranda.[7]
During this third conversation[,] [Appellant]
was patted down. During this third questioning
regarding the marijuana[,] another uniformed officer
was also present. [Appellant] responded that he had
smoked marijuana 40 minutes ago and had a
cigarette in the car.
Next, Officer Barrows … gave Trooper Jones
information about everything that he had observed
and heard from [Appellant].
Trooper Jones is a Pennsylvania State Trooper
and has been so employed for approximately two
and a half to three years.
Next, Trooper Jones has had contact with
individuals … who have used marijuana and has
observed them to have bloodshot eyes, slow and
slurred speech, unsteady gait and shaking.
Next, Trooper Jones has also had experience
with identifying the smell of marijuana.
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7
Miranda v. Arizona, 384 U.S. 436 (1966).
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Next, on September 23[, 2014,] Trooper Jones
received a call about a hit and run crash at 8:03
p.m. and she responded at 8:15. Trooper Jones’ car
was the fifth car to arrive at the scene.
Two other individuals were under investigation
at the scene for charges related to possession of
heroine [sic], hit and run, and for brandishing a
knife.
Next, when Trooper Jones arrived at the scene
she observed two individuals in custody and
[Appellant] on the scene out of custody.
Next, Officer Barrows told Trooper Jones what
he had observed, smelled and heard.
Next, when [Trooper Jones] came into contact
with [Appellant], she observed bloodshot eyes and
that he was speaking slowly.
Next, … Trooper Jones also smelled the odor of
marijuana coming from [Appellant].
Next, she spoke to [Appellant] about the hit
and run crash.
Another officer told Trooper Jones that
[Appellant] stated that a marijuana cigarette was
under the driver’s side floor board. [Appellant] did
not consent to the search of the vehicle he was
driving. [Appellant’s] wife was the owner of the
vehicle.
…
… [Appellant] was placed under arrest for
driving under the influence.
During the search of the vehicle[,] the officers
found a substance in addition to the cigarette[,] and
[Appellant] identified the substance saying it was
hashish.
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N.T., 4/21/2014, at 3-9. Based on these findings of fact, the trial court
concluded that probable cause existed to arrest Appellant for DUI. Id. at 9.
The trial court also granted Appellant relief in the form of suppressing his
statements and the fruits of the inventory search of his vehicle.8 Id.
The trial court specifically found that when Trooper Jones, the
arresting officer, encountered Appellant, Appellant was speaking slowly, had
bloodshot eyes, and emitted an odor of marijuana. N.T., 4/21/14, at 7.
Trooper Jones was experienced in identifying the aroma of marijuana and
had observed similar symptoms as the ones exhibited by Appellant in others
who have used marijuana. Id. at 6-7. Further, there is no dispute that
Appellant was operating a vehicle prior to the police encounter that resulted
in his arrest. See id. at 14. Therefore, we conclude the record supports the
trial court’s factual findings. See Gary, supra; see also N.T., 4/16/14, at
59-62. The trial court articulated its reasoning for its conclusion of law, in
light of the facts of this case, in its Rule 1925(a) opinion as follows.
[M]arijuana is a Schedule I controlled
substance; therefore [Appellant] was prohibited from
operating a vehicle with any amount of marijuana in
his system. In light of this standard, Officer
Barrows’ and Trooper Jones’ observations were more
than enough to establish that [Appellant] was
operating a vehicle with marijuana in his system.
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8
The Commonwealth did not file an interlocutory appeal from the trial
court’s partial grant of Appellant’s suppression motion with this Court
pursuant to Pennsylvania Rule of Appellate Procedure 311(d).
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Accordingly, based on the totality of the
circumstances, Officer Barrows and Trooper Jones
had enough information for a reasonably prudent
person to believe that [Appellant] was driving under
the influence of marijuana and had a metabolite in
his system.
Trial Court Opinion, 9/3/2014, at 5.
Under the totality of the circumstances, we conclude the facts and
circumstances within the knowledge of Trooper Jones, i.e., her first-hand
observations of Appellant and detection of marijuana odor, without
consideration of Appellant’s statements or the fruits of the search of the
vehicle, were sufficient to establish probable cause that Appellant was
driving under the influence of marijuana.9 See Delvalle, supra. Appellant
attempts to discount Trooper Jones’ determination of probable cause by
enumerating several factors that would support probable cause that were
not observed in the instant case; however, a finding of probable cause does
not require certainty but merely a probability of criminal activity. See
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9
Appellant suggests that the trial court erred in denying his motion to
suppress because it found there was probable cause to arrest for DUI-
metabolite but did not specifically find there was probable cause to arrest for
DUI-impaired ability. See Appellant’s Brief at 14 (suggesting “it is improper
to allow an arrest by law enforcement for suspicion of impairment when the
trial judge only found probable cause to arrest based on metabolite[]”).
However, the record does not suggest that the sole reason for Appellant’s
arrest was DUI-impaired ability. As noted, Appellant was arrested and
charged with, inter alia, both DUI-impaired ability and DUI-metabolite.
Trooper Jones testified Appellant was arrested for smoking marijuana and
operating his vehicle. N.T., 4/16/14, at 66. Therefore, we conclude this
argument is without merit.
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Thompson, supra. The observations by Trooper Jones were sufficient to
demonstrate a probability that Appellant was operating his vehicle under the
influence of marijuana. See id. Therefore, his issue is without merit.
Based on the foregoing, we conclude Appellant’s sole issue on appeal
does not entitle him to relief. Accordingly, we affirm the April 21, 2014
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2015
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