Com. v. Maczko, R.

J-S62012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ROSS MACZKO

Appellant No. 259 WDA 2015

Appeal from the Judgment of Sentence January 27, 2015
in the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-26-CR-0001853-2013

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 30, 2015

Appellant, Ross Maczko, appeals from the judgment of sentence

imposed on January 27, 2015 following his conviction by a jury of driving

under the influence, general impairment, and driving under the influence,

highest rate of alcohol; and entering guilty pleas to the summary charges of

disregard of traffic lane and careless driving.1 On appeal, he challenges the

trial court’s denial of his pretrial motion to suppress, and motion to dismiss

for the Commonwealth’s failure to establish a prima facie case at the

preliminary hearing. We affirm.

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3309(1), and 3714(a), respectively.
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We take the underlying facts and procedural history in this matter

from the trial court opinion of April 16, 2015.

At approximately 5:30 A.M. on June 16, 2013,
Pennsylvania State Police Trooper Keith C. Abels, and Trooper
Adam Sikorski were dispatched to respond to a report that a
silver vehicle was driving erratically and possibly struck a
guardrail while traveling south on State Road 119 near State
Road 982 [in Fayette County, Pennsylvania].[2] While
attempting to locate the vehicle, the Troopers were notified by
dispatch that the vehicle was located near Brooks Trailers on
State Road 119, was sighted again traveling on East Crawford
[A]venue with a flat right-front tire, and the vehicle’s registration
number was GKK4221. Upon responding to East Crawford
Avenue, the Troopers were signaled by a white SUV driven by
Mr. Brad Hall.[3] Mr. Hall related to the Troopers that he had
been following the silver vehicle until the operator pulled into a
driveway located at 601 East Gibson Avenue and parked the
vehicle on the property. Mr. Hall told the Troopers he observed
a white male wearing a fluorescent yellow shirt exit the vehicle
and proceed to enter the residence.

Mr. Hall directed Trooper Abels to the residence, and upon
approaching the front door, Trooper Abel[s] observed that the
keys to the residence were left in the front door lock. After
Trooper Abels knocked on the door to the residence, Appellant
answered and spoke with Trooper Abels about the multiple 911
calls made in regards to Appellant’s vehicle driving erratically on
State Road 119. Trooper Abels observed Appellant had glassy,
bloodshot eyes, slurred speech, trouble maintaining his balance
and a noticeable odor of an alcoholic beverage emanating from
his person. Appellant escorted Trooper Abels to a detached
garage where Appellant’s silver Pontiac Sunfire had been parked.
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2
The first report to 9-1-1 came from Mr. Bradley Lohr who testified at the
preliminary hearing that he called 9-1-1 after seeing a silver Pontiac driving
erratically and hit something. (See N.T. Hearing, 3/20/14, 5-7).
3
Mr. Brad Hall was the second person who called 9-1-1 to report the vehicle.
(See N.T. Trial, 01/06/15, 25, 29).

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Trooper Abels observed the vehicle’s GKK4221 registration plate,
a flat right front tire, damage to the right front fender, and a
disabled marker light.

Trooper Abels administered four (4) field sobriety tests and
after completing the tests, determined that Appellant
demonstrated characteristics of impairment. Appellant was
placed under arrest for suspicion of DUI and transported to
Highlands Hospital to undergo blood testing. Medical Technician
Jim Olson drew two (2) vials of blood from Appellant’s left arm at
6:21 A.M. Appellant’s blood sample was analyzed by the
Pennsylvania State Police Crime Lab and results showed
Appellant’s [Blood Alcohol Concentration (“BAC”)] to be [0].181
[percent] at the time of extraction.

On December 13, 2013, Appellant filed a lengthy Omnibus
Pretrial Motion in the nature of suppression of statements, writ
of habeas corpus and for dismissal of the charges. After hearing
thereon March 20, 2014, [t]he Honorable Judge Steven Leskinen
issued an [o]pinion and [o]rder denying said motion on April 22,
2014.

(Trial Court Opinion, 4/16/15, at 2-3).

On January 6, 2015, this case proceeded to a jury trial. During the

trial, the second eye-witness, Mr. Joseph Hall, testified that at approximately

5:30 A.M. he saw Appellant driving erratically, called 9-1-1, and followed

Appellant as he drove home. (See N.T. Trial, 01/06/15, at 22-29). Mr. Hall

further testified that at most a minute or two elapsed between when he saw

Appellant park his vehicle and when the police arrived at Appellant’s house

at 5:45 A.M. (See id. at 33, 56).

Following his jury trial, Appellant was convicted of the previously

mentioned charges. (See Trial Ct. Op., 4/16/15, at 1).

On January 27, 2015, Appellant was sentenced to a period of twenty-

three months’ intermediate punishment, with ninety days to be served on

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house arrest with electronic monitoring. (See id.). Additionally, Appellant’s

operator’s license was suspended for eighteen months. (See id. at 1-2).

On February 11, 2015, Appellant filed a timely notice of appeal. On

March 20, 2015, Appellant filed his timely Rule 1925(b) concise statement of

matters complained of on appeal. See Pa.R.A.P. 1925(b). The trial court

filed its 1925(a) opinion on April 16, 2015. See Pa.R.A.P. 1925(a).

Appellant raises eight questions for our review:

[1.] Whether the trial court erred in failing to grant the
[Appellant’s] [o]mnibus [p]retrial [m]otion, as a [p]olice
[o]fficer must have independent knowledge that a traffic
violation has been committed and not rely on the
observation of a layperson[?]

[2.] Whether the trial court erred in failing to find that the
Trooper violated both the Federal and Pennsylvania State
Constitutions by making warrantless entry into
[Appellant’s] residence and searching for evidence[?]

[3.] Whether the trial court erred in striking any
statements made prior to the illegal arrest made prior to
Miranda Rights, which should have been suppressed as all
said statements were clearly violations of [Appellant’s]
Fifth Amendment [c]onstitutional [r]ights[?]

[4.] Whether the trial court erred in failing to suppress the
[f]ield [s]obriety [t]est as [i]llegal and the [f]ruits of the
[t]est should have been suppressed by the trial court as
there was insufficient reasonable suspicion and was done
illegally without warrant in [Appellant’s] home[?]

[5.] Whether the trial court erred in failing to suppress the
illegally obtained blood tests as exigent circumstances
failed to exist to permit warrantless testing of [Appellant’s]
blood[?]

[6.] Whether the trial court erred in permitting the matter
to proceed to trial as a prima facie case failed to exist from
the outset to establish that [Appellant] was ever incapable

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of safe driving, a requirement under 75 Pa.C.S.A.
§3802(a)(1)[?]

[7.] Whether the trial court erred in permitting the matter
to proceed to trial as a prima facie case was never
established that [Appellant] ever drove, operated, or was
in actual physical control of his vehicle under the influence
of alcohol[?]

[8.] Whether the trial court erred in failing to dismiss the
case as the Commonwealth failed to provide required
discovery to the [d]efense in this case[?]

(Appellant’s Brief, at 1-2).

We note that with regard to issue eight, Appellant’s Brief states: “[a]s

the issue was resolved upon scrutiny of the record, the issue is withdrawn as

moot.” (Id. at 23). Accordingly, we only consider issues one through

seven.

We also note that Appellant’s arguments on issues one, two, three,

five, and six do not include any reference to the certified record. (See

Appellant’s Brief, at 8-15, 18-22); see also Pa.R.A.P. 2119(c).4 Appellant’s

failure to cite relevant portions of the certified record throughout his brief

has impeded our ability to conduct meaningful appellate review. See

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007),

____________________________________________

4
Furthermore, Appellant did not comply with the requirement in Rule
2117(b) that the “statement of the case shall not contain any argument. It is
the responsibility of appellant to present in the statement of the case a
balanced presentation of the history of the proceedings and the respective
contentions of the parties.” (Pa.R.A.P. 2117(b)). Appellant’s statement of
the case is five pages long, the last three of which mainly consist of various
arguments in support of Appellant’s position. (See Appellant’s Brief, at 3-7).

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appeal denied, 982 A.2d 509 (Pa. 2009) (“We shall not develop an argument

for [the appellant], nor shall we scour the record to find evidence to support

an argument; consequently, we deem this issue waived.”). Accordingly,

Appellant waived issues one, two, three, five, and six. Moreover, they would

not merit relief.

In his first five issues, Appellant claims that the trial court erred in

denying his omnibus pre-trial motion and failing to suppress the evidence

offered against him at trial. Specifically, he argues evidence should have

been suppressed because: (1) the police did not have independent

knowledge that a traffic violation had been committed; (2) the police made

warrantless entry into Appellant’s residence and searched for evidence; (3)

the trial court failed to suppress statements made by Appellant prior to his

being read his Miranda5 rights; (4) the trial court erred in failing to

suppress the field sobriety test as illegal and all evidence which was a fruit of

that test; and (5) the trial court erred in failing to suppress Appellant’s blood

test which was obtained without a warrant. (See Appellant’s Brief, at 8-21).

As discussed below, we disagree that the trial court erred in denying

Appellant’s various suppression motions.

Our standard of review for denial of a motion to suppress evidence is

well-settled.

____________________________________________

5
Miranda v. Arizona, 384 U.S. 436 (1966).

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When reviewing suppression motions, we are bound by the
suppression court’s factual findings that the record supports, but
we are not bound by the suppression court’s conclusions of law.
Thus, we are only to determine whether the suppression court
properly applied the law to the facts. Since the prosecution
prevailed in the suppression court, we may consider only the
Commonwealth’s evidence and so much of appellant’s evidence
as remains uncontradicted when read in the context of the
record as a whole.

Commonwealth v. Strader, 931 A.2d 630, 633 (Pa. 2007), cert. denied,

552 U.S. 1234 (2008) (citations and quotation marks omitted).

We consider issues one and four together because they both concern

whether Trooper Abels had the requisite reasonable suspicion to conduct a

search. Appellant claims that the trial court should have suppressed

evidence from Trooper Abels’s search, including the results of the field

sobriety test and the fruits of that test because he did not independently

observe Appellant operate his vehicle or commit any crime and therefore did

not have a reasonable suspicion that Appellant had committed a crime. 6

(See Appellant’s Brief, at 8-10, 15-17). We disagree.

An investigative detention, which includes administration of field

sobriety tests, is lawful if supported by reasonable suspicion. See

Commonwealth v. Cauley, 10 A.3d 321, 327 (Pa. Super. 2010).

____________________________________________

6
Specifically, Appellant argues that Trooper Abels did not observe Appellant
“in the acts of any criminal activity unless drinking Southern Comfort with
beer in your home’s kitchen after an unnerving experience is now a crime in
the Commonwealth.” (Appellant’s Brief, at 16).

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To meet the standard of reasonable suspicion, the officer must
point to specific and articulable facts which, together with the
rational inferences therefrom, reasonably warrant the intrusion.
In addition, we must look to the totality of the circumstances to
determine whether the officer had reasonable suspicion that
criminal activity was afoot.

Id. at 326 (citations and quotation marks omitted). Furthermore,

To have reasonable suspicion, police officers need not
personally observe the illegal or suspicious conduct, but may rely
upon the information of third parties, including ‘tips' from
citizens. . . . Indeed, identified citizens who report their
observations of criminal activity to police are assumed to be
trustworthy, in the absence of special circumstances, since a
known informant places himself at risk of prosecution for filing a
false claim if the tip is untrue[.]

Commonwealth v. Barber, 889 A.2d 587, 593 (Pa. Super. 2005) (citations

omitted).

Here, the trial court found that Mr. Hall, one of two eye-witnesses to

Appellant’s driving, informed Trooper Abels that he called 9-1-1 after seeing

Appellant’s vehicle going very slowly, leaning towards the driver’s side and

swerving, and that there was a flat tire and possible damage to the vehicle.

(See Trial Ct. Op., 4/22/14, at 6; see also N.T. Hearing, 3/20/14, at 9, 16).

The trial court also found that after Appellant answered the door, Trooper

Abels was able to make his own observations, finding that “[Appellant had] a

strong odor of an alcoholic beverage about him, ‘slurred speech, glassy

eyes,’ and ‘was unsure of his footing.’” (Trial Ct. Op., 4/22/14, at 12

(quoting N.T. Hearing, 3/20/14, at 18, 26)).

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Accordingly, we conclude the trial court properly determined that

Trooper Abels had reasonable suspicion to investigate Appellant, including

the administration of field sobriety tests. Mr. Hall, an identified eye-witness,

personally provided information to the Trooper, which led him to believe that

criminal activity was afoot, and his own observations led him to reasonably

believe that Appellant was intoxicated. See Barber, supra at 594-95.

Therefore, Appellant’s first and fourth issues are meritless.

In Appellant’s second issue, he claims that the trial court erred by not

suppressing evidence obtained by Trooper Abels after a warrantless entry

onto his property and search for evidence. (See Appellant’s Brief, at 10-

13). Specifically, Appellant argues that the search was illegal because no

exigent circumstances existed which would have justified a warrantless

search. (See id.). We disagree.

“Absent probable cause and exigent circumstances, warrantless

searches and seizures in a private home violate both the Fourth Amendment

and Article 1 § 8 of the Pennsylvania Constitution.” Commonwealth v.

Gibbs, 981 A.2d 274, 279 (Pa. Super 2009), appeal denied, 3 A.3d 670 (Pa.

2010) (citation and footnote omitted).

In Commonwealth v. Simmen, this Court found that an officer’s

entry onto an appellant’s property was constitutional when that officer saw

the appellant’s vehicle in the front driveway, noticed damage to the vehicle,

and then knocked on the front porch where the appellant’s wife gave her

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consent for police to enter the home. See Commonwealth v. Simmen, 58

A.3d 811, 816-17 (Pa. Super. 2012).

Here, similarly, Trooper Abels entered onto Appellant’s front porch and

knocked on the front door, which Appellant himself answered. (See Trial Ct.

Op., 4/16/15, at 2-3; see also Trial Ct. Op., 4/22/14, at 10-11). After

answering the front door and speaking with Trooper Abels, Appellant

voluntarily invited him to enter his detached garage and permitted him to

inspect his vehicle. (See Trial Ct. Op., 4/22/14, at 10-11).

Accordingly, we conclude the trial court properly determined that

Trooper Abels’s entry onto Appellant’s front porch without a warrant was

constitutional because Appellant had no reasonable expectation of privacy on

his front porch. See Simmen, supra at 815. Furthermore, we conclude

that the trial court properly decided that the officer’s entry into the detached

garage was with Appellant’s voluntarily given consent and did not require a

warrant. See id. at 816-17; (see also Trial Ct. Op., 4/22/14, at 11).

Therefore, Appellant’s second issue does not merit relief.

In Appellant’s third issue, he claims that the trial court erred when it

did not suppress statements he made prior to his receiving his Miranda

rights. (See Appellant’s Brief, at 13-15).7 We disagree.

____________________________________________

7
Appellant’s argument does not specify which statements he contends the
court should have suppressed, rather he generally states:

(Footnote Continued Next Page)

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Statements made during custodial interrogation are
presumptively involuntary, unless the accused is first advised of
[his] Miranda rights. Custodial interrogation is questioning
initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of [his] freedom of
action in any significant way. . . . Thus, [i]nterrogation occurs
where the police should know that their words or actions are
reasonably likely to elicit an incriminating response from the
suspect. [I]n evaluating whether Miranda warnings were
necessary, a court must consider the totality of the
circumstances. . . .

* * *

Said another way, police detentions become
custodial when, under the totality of the
circumstances, the conditions and/or duration of the
detention become so coercive as to constitute the
functional equivalent of arrest.

Thus, the ultimate inquiry for determining whether an
individual is in custody for Miranda purposes is whether there
[was] a formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest. Under the totality of
the circumstances approach, the following factors are relevant to
whether a detention has become so coercive as to constitute the
functional equivalent of a formal arrest: the basis for the
_______________________
(Footnote Continued)

Appellant was asked how his tire became flat and how he
received a dent on the passenger side of his car. . . . Trooper
Abels asked these questions for the purpose of evoking
incriminating responses . . . . There is simply no other way to
interpret the investigation and the information collected should
have been suppressed as illegally obtained.

(Appellant’s Brief, at 14).

During the preliminary hearing, defense counsel argued that “[t]he
charge is driving under influence, so he did say that he was driving, that he
had a flat tire. I mean, that was his own admission that he was driving this
vehicle recently.” (N.T. Hearing, 3/20/14, at 44-45). The trial court
concluded that these statements were not incriminating and denied
Appellant’s motion to suppress. (See Trial Ct. Op., 4/22/14, at 12).

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detention; its length; its location; whether the suspect was
transported against his or her will, how far, and why; whether
restraints were used; whether the law enforcement officer
showed, threatened or used force; and the investigative
methods employed to confirm or dispel suspicions.

Commonwealth v. Williams, 941 A.2d 14, 30-31 (Pa. Super. 2008) (en

banc) (citations and quotation marks omitted).

Here, the trial court found that when Trooper Abels arrived at

Appellant’s residence, he walked to the front door, observed a set of keys

still stuck in the lock, and knocked. (See Trial Ct. Op., 4/22/14, at 4).

When Appellant answered, Trooper Abels informed him “he had received

multiple calls through 9-1-1 that [Appellant] was driving erratically down

Route 119 and that he possibly crashed into something.” (Id.). Appellant

then denied crashing into anything, but acknowledged that someone

approached him when he reached his residence. (See id.). He then offered

to show Trooper Abels his vehicle, which was parked in the detached garage.

(See id.).

Considering the totality of the circumstances, although Trooper Abels

did tell Appellant that he had received calls about Appellant’s erratic driving

and possible collision, we conclude that he was not in custody for Miranda

purposes. See Williams, supra at 31. Trooper Abels questioned Appellant

on his front porch after he voluntarily answered his front door. Trooper

Abels did not transport Appellant, did not use restraints, and neither

showed, threatened, nor used force. See id. Under these circumstances,

we conclude that Appellant’s initial questioning was not so coercive, or his

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freedom so curtailed as to constitute a formal arrest or restraint on freedom

of movement of the degree associated with a formal arrest. See id. at 33.

Furthermore, Appellant fails to explain how he was prejudiced by the

admission of this statement. (See Appellant’s Brief, at 13-15). Appellant

took the stand at his trial and admitted that he was driving his vehicle with a

flat tire on the night of June 16, 2013. (See N.T. Trial, at 76, 82-83); see

also Commonwealth v. Sepulveda, 855 A.2d 783, 789-90 (Pa. 2004),

cert. denied, 546 U.S. 1169 (2006) (concluding appellant was not entitled to

relief when trial court did not suppress statement made by him prior to

acknowledging Miranda rights where appellant offered same statement

during testimony at trial). Accordingly, Appellant’s third issue lacks merit.

In Appellant’s fifth issue, he claims that the trial court should have

suppressed the results of his blood test. (See Appellant’s Brief, at 18-21).

Specifically, he argues that the state police obtained the blood sample

without a warrant and without exigent circumstances, and although he

consented to the blood test, the withdrawal of his blood

was not consensual[,] he was threatened by the [T]rooper. He
was told if he did not consent he would lose his license for a
year. . . . [T]he loss of a license, particularly for a man who is an
employee of the Commonwealth with a CDL license working for
PennDOT, this was a death sentence.

(Id. at 18-19 (emphasis omitted); see id. at 18-21). We disagree.

“It is well-established that the administration of a blood alcohol test is

a search falling within the protection of the Fourth Amendment.”

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Commonwealth v. Danforth, 576 A.2d 1013, 1016 (Pa. Super. 1990),

affirmed sub nom. Commonwealth v. Kohl, 615 A.2d 308 (Pa. 1992)

(citations omitted). Generally, searches are considered constitutional only if

conducted pursuant to a search warrant; however, “an actual, voluntary

consent to a search will eliminate the warrant and probable cause

requirements of the Fourth Amendment.” Id. at 1022 (citations omitted).

[I]n order for consent to be valid, it must be unequivocal,
specific, and voluntary. The appellant must have intentionally
relinquished or abandoned a known right or privilege. . . . The
determination as to whether consent has been given voluntarily
is a question of fact which must be determined in each case from
the totality of the circumstances. This Court has held that the
following factors should be considered in determining whether
consent was given voluntarily: the setting in which the consent
was obtained; what was said and done by the parties present;
and the age, intelligence, and educational background of the
person consenting.

Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 387 (Pa. Super. 2013)

appeal denied, 77 A.3d 1259 (Pa. 2013) (quoting Commonwealth v.

Dunne, 690 A.2d 1233, 1236 (Pa. Super. 1997)) (internal citations and

quotation marks omitted).

Here, the trial court found that Trooper Abels read Appellant his

O’Connell8 warnings, he acknowledged that he understood them, and

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8
Commonwealth, Dep’t. of Transp., Bureau of Traffic Safety v.
O'Connell, 555 A.2d 873 (Pa. 1989).

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signed the implied consent form. (See Trial Ct. Op., 4/22/14, at 4, 14).

Because Trooper Abels advised Appellant of his rights pursuant to the

O’Connell warnings, and because Appellant acknowledged and signed the

form indicating that he understood them, we conclude the trial court

properly determined that his consent to the blood draw was unequivocal,

specific, and voluntary. See Gorbea-Lespier, supra at 389 (finding that

consent to blood test was unequivocal, specific and voluntary where

appellant was informed of implied consent laws and signed written consent

form). Accordingly, Appellant’s fifth issue lacks merit.

Finally, in Appellant’s sixth and seventh issues, he claims that the trial

court erred in not dismissing his case at the preliminary hearing because the

Commonwealth never established a prima facie case that he violated 75

Pa.C.S.A. § 3802(a)(1), driving under the influence, or 75 Pa.C.S.A. §

3802(c), driving under the influence, blood alcohol content 0.16 percent or

higher. (See Appellant’s Brief, at 21-23). Specifically, Appellant argues that

the Commonwealth failed to establish that he was ever incapable of safe

driving or that he ever drove, operated, or was in physical control of his

vehicle under the influence of alcohol. (See id.). We disagree.

“A finding at a preliminary hearing that sufficient evidence exists to

require a defendant to stand trial is not subject to review if there has been a

subsequent independent judicial judgment that there is sufficient evidence to

require the defendant to stand trial.” Commonwealth v. Ballard, 460 A.2d

1091, 1092 (Pa. 1983); see Commonwealth v. Lee, 662 A.2d 645, 650

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(Pa. 1995), cert. denied, 517 U.S. 1211 (1996) (holding that defendant’s

adjudication of guilt rendered moot his allegation that the Commonwealth

failed to establish a prima facie case at the preliminary hearing); see also

Commonwealth v. Hess, 414 A.2d 1043, 1048 (Pa. 1980) (“If in fact it is

determined at trial that the evidence of the Commonwealth is sufficient to be

submitted to the jury, then any deficiency in the presentation before the

district justice would have been harmless.”).

Here, the jury found Appellant guilty of driving under the influence,

and driving under the influence, highest rate of alcohol. (See Trial Ct. Op.,

4/16/15, at 1). Accordingly, Appellant’s claim in issues six and seven is

moot.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2015

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