J-S56038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMIAH A. SELVEY,
Appellant No. 810 MDA 2015
Appeal from the Judgment of Sentence April 29, 2015
in the Court of Common Pleas of Franklin County
Criminal Division at No.: CP-28-CR-0000178-2013
BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 06, 2015
Appellant, Jeremiah A. Selvey, appeals from the judgment of sentence
entered on April 29, 2015, following his conviction of three counts of driving
under the influence (DUI).1 On appeal, Appellant challenges the denial of his
motion to suppress. For the reasons discussed below, we affirm.
We take the underlying facts and procedural history in this matter
from the trial court’s opinion of February 16, 2015, and our independent
review of the certified record.
Testimony was taken at the suppression hearing on
December 26, 2013. At the hearing the arresting officer, Officer
Matthew Lynch of the Chambersburg Police Department, was the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(d)(1)(i), (ii), and (d)(2).
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sole witness to testify. Officer Lynch testified that he has
completed numerous training courses relating to the detection of
impairment including: Drug Recognition School; Field
Coordination; Drug Recognition Expert School; Standardized
Field Sobriety Testing Instructor Course; Advance Roadside
Impaired Driving Enforcement Seminar; and Standardized Field
Sobriety Testing Training.
The salient facts are as follows. On October 14, 2012 at
around 1:09 a.m., Officer Lynch observed [Appellant’s] vehicle
being driven in the area of Hood Street very slowly in what he
believed to be an overly cautious manner. Officer Lynch testified
that there were only a handful of cars in the area and at that
time of day [and in that area,] there tends to be more impaired
drivers on the road. Officer Lynch followed [Appellant] for a
short time and did not observe [him] commit any traffic
violations. Shortly thereafter Officer Lynch conducted a vehicle
stop after confirming that the registration on the vehicle was
suspended. Initially Officer Lynch noticed [Appellant] stopped
his vehicle in the middle of the road even though there was
room on the side of the road for [him] to stop. [After remaining
in the middle of the road for several seconds, Appellant pulled
his car over to the right side of the road.] Officer Lynch then
made contact with [Appellant], standing less than an arm’s
length away. Officer Lynch immediately smelled alcohol
emanating from the vehicle. Officer Lynch noticed [Appellant’s]
eyes were glassy and he had reddened conjunctiva, i.e., pinkeye
[a known side effect of marijuana use]. Officer Lynch testified
that when asking [Appellant] questions it seemed as though he
had a hearing problem or that he did not comprehend because
he did not respond at normal speed. Officer Lynch further
testified that when he asked [Appellant] for the car registration,
[he] slowly and lethargically sifted through his papers.
Officer Lynch then requested that [Appellant] alight from
his vehicle to perform field sobriety tests. [Appellant] was asked
three times to step out of the vehicle before he responded. The
first test that [Appellant] performed was the Horizontal Gaze
Nystagmus (“HGN”) Test. Officer Lynch observed no HGN
although he testified that HGN is generally activated by alcohol.
During the HGN Test [Appellant] did show a lack of convergence
which indicated recent cannabis usage according to Officer
Lynch. [Appellant] also performed the Romberg Balance Test
where he estimated the passage of 30 seconds in 12 seconds.
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Officer Lynch also noticed [he] had body [and eye] tremors.
Officer Lynch noticed other signs of recent cannabis [usage]
such as dilated pupils, green discoloration of the tongue; and
[Appellant’s] heart rate was abnormally high at 136 beats per
minute. When asked when he last smoked [cannabis, Appellant]
responded, “60 to 90 days ago.” In Officer Lynch’s opinion
according to his experience, training and education, [Appellant]
showed several signs that he was incapable of safe driving.
(Trial Court Opinion, 2/16/15, at 1-3).
Officer Lynch arrested Appellant and transported him to Chambersburg
Hospital for a blood draw. (See N.T. Suppression Hearing, 12/26/13, at 25).
Appellant’s blood tested positive for marijuana use. (See id. at 26). On
March 4, 2013, the Commonwealth filed a criminal information charging
Appellant with the above-mentioned offenses. On May 1, 2013, Appellant
filed a motion to suppress. The trial court held a hearing on Appellant’s
motion on December 26, 2013. On February 14, 2014, the trial court denied
Appellant’s motion to suppress.
On September 11, 2014, the trial court issued an order memorializing
the parties’ agreement to a non-jury trial. They also agreed to the
admittance of the blood tests results, and that the only witnesses testifying
would be Officer Lynch and possibly Appellant. On October 23, 2014, the
trial court issued a second order stating that, at the time of trial, the parties
agreed that the trial court could decide Appellant’s guilt or innocence based
upon the transcript of the testimony from the suppression hearing. On
February 16, 2015, the trial court found Appellant guilty of the above-
mentioned charges. On April 29, 2015, the trial court sentenced Appellant
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to a term of incarceration of not less than two nor more than six months.
Appellant did not file any post-trial motions.
On May 11, 2015, Appellant filed a timely notice of appeal. On May
12, 2015, the trial court directed Appellant to file a concise statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed his
timely Rule 1925(b) statement on May 20, 2015. On May 21, 2015, the trial
court issued an opinion adopting its earlier opinion of February 16, 2015.
See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following question for our review:
Did the suppression court err in denying [Appellant’s]
[m]otion to [s]uppress the seizure of [Appellant’s] person, his
subsequent arrest and the results of the blood test, because the
seizure, arrest and blood test were all performed without
sufficient probable cause by the arresting officer to believe that
[Appellant’s] ability to drive was impaired, thereby violating
[Appellant’s Fourth] Amendment rights?
(Appellant’s Brief, at 8).
On appeal, Appellant challenges the denial of his motion to suppress.
(See id. at 14-18). When we review a ruling on a motion to suppress, “[w]e
must determine whether the record supports the suppression court’s factual
findings and the legitimacy of the inferences and legal conclusions drawn
from these findings.” Commonwealth v. Holton, 906 A.2d 1246, 1249
(Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation
omitted). Because the court in the instant matter found for the prosecution,
we will consider only the testimony of the prosecution’s witnesses and any
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uncontradicted evidence supplied by Appellant. See id. If the evidence
supports the suppression court’s factual findings, we can reverse only if
there is a mistake in the legal conclusions drawn by the court. See id.
On appeal, Appellant admits that Officer Lynch had probable cause to
effectuate the stop of his vehicle. (See Appellant’s Brief, at 15). However,
Appellant argues that, “this suspended registration was not an indicator of
impaired driving. In order to conduct a lawful warrantless arrest for DUI,
Officer Lynch needed to have additional probable cause to believe
[Appellant] was impaired.” (Id.) (citation omitted). Appellant maintains
that Officer Lynch did not perform all the field sobriety tests and did not
observe any impaired driving. (See id. at 17-18). He asserts that the
results of the blood test should have been suppressed. We disagree.
Officer Lynch arrested Appellant for violations of 76 Pa.C.S.A. § 3802,
which states in pertinent part:
(d) Controlled substances.--An individual may not drive, operate
or be in actual physical control of the movement of a vehicle
under any of the following circumstances:
(1) There is in the individual’s blood any amount of
a. . . .
(iii) metabolite of a substance under
subparagraph (i) or (ii).
75 Pa.C.S.A. § 3802(d)(1)(iii). Thus, as the Commonwealth correctly states,
(see Commonwealth’s Brief, at 4), a defendant does not need to be
impaired to violate this statute, which prohibits driving when a defendant
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has any amount of a controlled substance in his blood. See
Commonwealth v. Etchison, 916 A.2d 1169, 1174 (Pa. Super. 2007),
affirmed, 943 A.2d 262 (Pa. 2008). A police officer has the authority to
arrest an individual without a warrant if there is probable cause to believe
the person violated the DUI statute. See Commonwealth v. Dommel, 885
A.2d 998, 1001 (Pa. Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007).
Our Supreme Court has stated:
Probable cause is made out when 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.
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.
In determining whether probable cause exists, we apply a
totality of the circumstances test.
Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citations
and quotation marks omitted, emphasis in original). The Court also stated
that:
[p]robable cause is a practical, nontechnical conception: it is a
fluid concept—turning on the assessment of probabilities in
particular factual contexts not readily, or even usefully, reduced
to a neat set of legal rules. Indeed, the instant case illustrates
as clearly as any other the very reason we adopted this
approach, namely, the need to be mindful of the notion of
probable cause as based on the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.
Commonwealth v. Ruey, 892 A.2d 802, 815-16 (Pa. 2006) (citations and
quotation marks omitted).
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Recognizing these principles, this Court has stated:
Probable cause does not involve certainties, but rather the
factual and practical considerations of everyday life on which
reasonable and prudent men act. It is only the probability and
not a prima facie showing of criminal activity that is a standard
of probable cause. To this point on the quanta of evidence
necessary to establish probable cause . . . finely tuned standards
such as proof beyond a reasonable doubt or by a preponderance
of the evidence, useful in formal trials, have no place in the
[probable-cause] decision.
Dommel, supra at 1002 (citations and quotation marks omitted).
Here, the record shows that, at 1:09 a.m., Officer Lynch, an
experienced police officer with extensive training in recognizing individuals
driving under the influence, was patrolling at a time and in an area where it
was common for persons to drive under the influence. (See N.T.
Suppression Hearing, at 5-10). He testified that Appellant was driving in a
very slow and overly cautious manner and a check showed that his
registration was suspended. (See id. at 10-11). Despite there being places
to pull over, Appellant stopped in the middle of the road, waited several
seconds and then pulled over to the side of the road. (See id. 11-12).
Upon making contact, Officer Lynch smelled alcohol emanating from the
vehicle and noticed Appellant’s eyes were glassy and pinkish. (See id. at
12). He testified that “pink eye” is a common side effect of marijuana
consumption. (Id. at 14; see id. at 14-15). Officer Lynch observed that
Appellant had difficulty responding to questions, in finding the relevant
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license, registration and insurance documents, and moved in a slow,
lethargic manner. (See id. at 12-13).
Officer Lynch asked Appellant to exit his vehicle but Appellant did not
appear to understand the request, and had to be asked three times before
slowly leaving the vehicle. (See id. at 16). Officer Lynch again observed
that Appellant’s eyes were glassy, red, and his pupils were dilated. (See id.
at 14-15). Appellant admitted to marijuana use within the last sixty to
ninety days. (See id. at 25).
Officer Lynch detected several other signs of marijuana use when he
performed the HGN and Romberg Balancing field sobriety tests. (See id. at
19-20). These included: eye tremors, body tremors, lack of convergence
during the HGN test, green discoloration of the tongue, and an inability to
correctly estimate the passage of time. (See id.). He took Appellant’s pulse
and found his heart rate to be highly elevated, another known symptom of
marijuana use; he testified that, based upon his experience, Appellant’s
pulse was too high to be caused by the fact of the traffic stop. (See id. at
21-23). Officer Lynch stated that he could not perform the full range of
sobriety tests because of problems with the terrain. (See id. at 19-20).
Initially, we note that this Court does not require the failure of field
sobriety tests in order to arrest an individual for DUI. See Commonwealth
v. Simmen, 58 A.3d 811, 817 (Pa. Super. 2012). Moreover, “[e]rratic
driving is not a super-factor, much less one determinative of DUI.”
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Commonwealth v. Salter, — A.3d —, 2015 WL 4626915, at *5 (Pa.
Super., filed August 4, 2015).
Here, Appellant, driving a vehicle with registration under suspension,
had problems obeying police commands promptly, had glassy and pinkish
eyes, dilated pupils, a green discoloration of his tongue, failed field sobriety
tests and exhibited several other known signs of marijuana use. In the
totality of the circumstances, Officer Lynch had sufficient probable cause to
arrest Appellant for DUI. See id. (despite absence of erratic driving and
slurred speech, there was probable cause to arrest where there was odor of
alcohol emanating from vehicle, defendant had bloodshot eyes and
performed poorly on field sobriety tests); see also Commonwealth v.
Weaver, 76 A.3d 562, 568 (Pa. Super. 2013), affirmed, 105 A.3d 656 (Pa.
2014) (sufficient probable cause to arrest where defendant was sluggish and
slow to respond to commands and failed HGN test); Simmen, supra at
817-18; Commonwealth v. Angel, 946 A.2d 115, 118 (Pa. Super. 2008)
(sufficient probable cause to arrest on suspicion of DUI, even in absence of
field sobriety tests, where defendant had slurred speech, smelled of alcohol,
and had glassy eyes). The trial court properly denied the motion to
suppress. Appellant’s claim lacks merit.
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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