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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL A. CINTRON,
Appellant No. 1380 EDA 2015
Appeal from the Judgment of Sentence April 24, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006164-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 19, 2016
Appellant Michael A. Cintron appeals the judgment of sentence entered
by the Honorable Gregory M. Mallon on April 24, 2015, in the Court of
Common Pleas of Delaware County. Following our review of the record, we
affirm.
The trial court1 articulated the relevant facts and procedural history
herein as follows:
On July 4, 2014, Corporal Steven William Powers, an
officer with the Glenolden Borough Police Department for almost
20 years, was on duty in his semi-marked1 police vehicle. N.T.,
1/8/15, pp. 7-9. Corporal Powers was in full uniform and was
parked in the lot of the Glenolden Swim Club. Id. at 9. To his
right was the area on South Avenue on which the violation giving
rise to the probable cause to stop happened. In order to fullly
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1
As Judge Mallon served as both the suppression court and trial court below,
we generally refer to the trial court for ease of discussion.
*Former Justice specially assigned to the Superior Court.
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understand the basis for the stop, it is necessary to describe the
roadway.
Heading west on South Avenue after leaving the Borough
of Folcroft and then entering the Borough of Glenolden, the
grade of South Avenue changes to a steep downward hill. Id. at
71-72. [sic] On this steep downward grade, South Avenue bends
sharply to the left. The estimate of the bend to the left is
between 70 to 90 degrees. Id. at 25, 90. [sic] At the bend is a
concrete wall, which has been painted with reflective paint and
has a fence. Id. at 26-27. The paint on the wall was described as
a fluorescent, and was painted as such because of prior
accidents in the area. Id. at 14.
It was on this roadway at approximately 11 P.M. on the
evening of the Fourth of July 2014, while sitting in his patrol
vehicle, that Corporal Powers heard a loud screech, then looked
up and saw a white vehicle in the above described portion of
South Avenue. Corporal Powers said he saw said white vehicle
swerve to the left. Id. at 28-29. Corporal Powers also said that
it appeared that the car was going straight to the fence line and
then "all of a sudden jerked to the left."2 Id. at 33. Corporal
Powers pulled out of the swim club parking lot to follow the
vehicle on South Avenue. He observed the vehicle as it
continued down South Avenue and stop at a steady red traffic
light at Chester Pike. Id. at 29. After the light turned green, the
Appellant proceeded driving east on South Avenue for about an
additional 1000 feet before he was pulled over by Corporal
Powers. Id. at 29-31. At no point while Corporal Powers was
following the Appellant did the Appellant do anything beyond
what was already described above that would provide Corporal
Powers any additional probable cause or reasonable suspicion to
justify a car stop.
Corporal Powers approached the vehicle and spoke to the
driver. The driver, the Appellant herein, provided his driver's
license and told Corporal Powers that he had been working until
9:30 P.M. and had stopped for a beer on his way home. Id. at
36. The Appellant was very familiar with the area and told
Corporal Powers that he had swerved because there was a
pothole in the roadway. Id. at 35. Later that evening, Corporal
Powers returned to area in question and did [ ] locate any
potholes. Id. at 54. [sic]
Upon speaking to the Appellant, Corporal Powers observed
that the Appellant's eyes were bloodshot and glassy. Id. at 35.
When the Appellant produced his license, Corporal Powers
smelled an odor of alcoholic beverage coming from the
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Appellant's person. Id. at 35. Based upon his observations,
Corporal Powers believed that the Appellant was incapable of
safe driving and the Appellant was arrested for driving under the
influence.
Appellant, through counsel, filed a pre-trial motion to
suppress.[2] Following a hearing, the court denied Appellant's
motion on February 9, 2015. A non-jury stipulated trial was
conducted on March 27, 2015. At trial, the Commonwealth
submitted the affidavit of probable cause and incident report, the
notes of testimony from the Appellant's preliminary hearing, the
notes of testimony from the Appellant's suppression hearing, and
the results of the drug laboratory report in this case. Counsel
stipulated as follows:
If called to testify at trial, Corp. Powers would opine
that based on his extensive training and experience, the
defendant was unable to safely operate a motor vehicle
on the highways of the Commonwealth on July 4, 2014.
Specifically, Corp. Powers has [ ] initiated thousands of
traffic stops and has personally arrested individuals for
Driving Under the Influence (DUI) more than three
hundred (300) times. In the instant case, Corp. Powers
would base his opinion regarding the defendant's inability
to safely operate a motor vehicle on the following:
1. The unsafe manner in which the defendant was
driving, including Corp. Power's observation of the
defendant's car swerving,
2. The defendant's admission that he skidded and
swerved while driving,
3. The odor of alcoholic beverage emanating from the
defendant's person,
4. The defendant's glassy and bloodshot eyes,
5. The defendant's profuse sweating at the time of the
stop, and
6. The defendant's admission that he had consumed at
least one alcoholic beverage.
As a result of the traffic stop and Corp. Powers' belief
that the defendant was incapable of safely operating a
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[2]
Importantly, Appellant solely maintained therein that Corporal Powers’
stop of his vehicle had been unlawful because he lacked reasonable
suspicion to believe that Appellant had been driving under the influence of
alcohol in violation of 75 Pa.C.S.A. § 3802.
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motor vehicle on July 4, 2014, the defendant, Michael
Cintron was arrested for Driving Under the Influence
pursuant to 75 Pa.C.S.A. 3802(c). The defendant
hereby stipulates that Corp. Powers had probable
cause to arrest him for Driving Under the Influence
in this matter.
The defendant was properly advised of his rights and
consented to a withdrawal of two vials of blood at Taylor
Hospital. On or about July 7, 2014, Daniel J. Lydon, of the
Glenolden Borough Police submitted One (1) sealed Blood
Alcohol Kit containing; (1.1) Whole blood specimen
identified as collected from Michael Cintron, to the Lima
Regional Laboratory of the Pennsylvania State Police
Bureau of Forensic Services. The whole blood specimen
contained in Item 1.1 was analyzed by Forensic Scientist
Irina B. Aleshkevich. If called to testify, Ms. Aleshkevich
would be qualified in the field of forensic science as an
expert and would testify in that capacity to the result of
her analysis, that Item 1.1 was analyzed using headspace
gas chromatography and found to contain 0.204 plus or
minus 0.009 gram% ethyl alcohol in whole blood.
See Stipulation dated 3/26/2015 [sic] [(emphasis added)].3
The court found Appellant guilty of driving under the
influence, 75 Pa.C.S.A. § 3802(c). On April 24, 2015 Appellant
was sentenced to an aggregate sentence of 90 days to 23
months and imposed a $1500 fine and $300 cost assessment.
The Appellant was sentenced to 3 years of consecutive
probation, and given credit for time served.4
On May 6, 2015, Appellant filed a notice of appeal
necessitating this opinion. Following a directive from this court,
Appellant filed a 1925(a) statement. Appellant sets forth the
following issue in his Concise Statement of Matters Complained
of on Appeal:
(1) The Commonwealth's evidence presented at the
Suppression Hearing on January 8, 2015 was insufficient
to establish probable cause for a Vehicle Code violation or
reasonable suspicion that the defendant was Driving
Under the Influence to justify the traffic stop.
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1
Corporal Powers explained that a “semi-marked” police vehicle
is “a slick-top police car. It has no external police lights outside.
All the lights are inside. But it is fully marked Glenolden Police”
N.T., 1/8/15, p. 9.
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2
On cross-examination counsel established that Corporal Powers
did not observe the Appellant “skidding” but that the Appellant
had told him that he skidded.
3
The Commonwealth and defense also stipulated to the chain of
custody.
4
The Appellant’s sentence was stayed pending this appeal. See
Order dated 5/14/2015.
Trial Court Opinion, filed October 6, 2015, at 1-4.
In his appellate brief, Appellant presents three questions for our
consideration:
1. Whether the trial court erred when it denied [ ]
Appellant’s motion to suppress, finding that Corporal Stephen
Powers’ observations were sufficient to enable him to have
probable cause that [ ] Appellant was driving his vehicle in
violation of § 3361 (“Driving vehicle at safe speed”) of the
vehicle code.
2. Whether the trial court erred when it denied [ ] Appellant’s
motion to suppress because the Commonwealth failed to meet
its burden through Corporal Powers’ testimony.
3. Whether the trial court erred when it denied [ ] Appellant’s
motion to suppress, finding that Corporal Stephen Powers’
observations caused him to have a reasonable suspicion that [ ]
Appellant was driving under the influence.
Brief of Appellant at 4.
In considering the above claims, we are mindful of our well-settled
standard and scope of review in suppression matters:
When reviewing the propriety of a suppression order, an
appellate court is required to determine whether the record
supports the suppression court's factual findings and whether
the inferences and legal conclusions drawn by the suppression
court from those findings are appropriate. Because Appellee
prevailed in the suppression court, we may consider only the
evidence of the defense and so much of the evidence for the
Commonwealth as remains uncontradicted when read in the
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context of the record as a whole. Where the record supports the
factual findings of the suppression court, we are bound by those
facts and may reverse only if the legal conclusions drawn
therefrom are in error. However, where the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court's conclusions of law are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts. As a
result, the conclusions of law of the suppression court are
subject to plenary review.
Commonwealth v. Dean, 940 A.2d 514, 516 (Pa.Super. 2008) (internal
quotations and citations omitted). 75 Pa.C.S.A. § 6308 provides in relevant
part that:
(b) Authority of police officer.—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 checking the vehicle's registration,
proof of financial responsibility, vehicle identification number or
engine number or the driver's license, or to secure such other
information as the officer may reasonably believe to be
necessary to enforce the provisions of this title.
75 Pa.C.S. § 6308(b). In this regard and relevant to the within discussion,
this Court recently reiterated that:
when considering whether reasonable suspicion or probable
cause is required constitutionally to make a vehicle stop, the
nature of the violation has to be considered. If it is not necessary
to stop the vehicle to establish that a violation of the Vehicle
Code has occurred, an officer must possess probable cause to
stop the vehicle. Where a violation is suspected, but a stop is
necessary to further investigate whether a violation has
occurred, an officer need only possess reasonable suspicion to
make the stop. Illustrative of these two standards are stops for
speeding and DUI. If a vehicle is stopped for speeding, the
officer must possess probable cause to stop the vehicle. This is
so because when a vehicle is stopped, nothing more can be
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determined as to the speed of the vehicle when it was observed
while traveling upon a highway. On the other hand, if an officer
possesses sufficient knowledge based upon behavior suggestive
of DUI, the officer may stop the vehicle upon reasonable
suspicion of a Vehicle Code violation, since a stop would provide
the officer the needed opportunity to investigate further if the
driver was operating under the influence of alcohol or a
controlled substance. Compare Commonwealth v. Enick, 70
A.3d 843, 846 (Pa.Super. 2013) (probable cause required to
stop for failure to drive on right side of roadway),
Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa.Super.
2013) (probable cause required to stop for failure to use turn
signal), Commonwealth v. Busser, 56 A.3d 419, 424
(Pa.Super. 2012) (probable cause required to stop for failure to
yield to emergency vehicles), and [Commonwealth v.]Feczko,
10 A.3d [1285], 1291 [(Pa.Super. 2010)(en banc)] (probable
cause required to stop for failure to maintain lanes), with
Commonwealth v. Holmes, 609 Pa. 1, 14 A.3d 89, 96–97
(2011) (reasonable suspicion sufficient to stop to investigate
front windshield obstruction), Commonwealth v. Bailey, 947
A.2d 808, 812–14 (Pa.Super. 2008) (reasonable suspicion
sufficient to stop to investigate faulty exhaust system or
muffler); see also Commonwealth v. Landis, 89 A.3d 694,
703 (Pa.Super. 2014) (noting that where trooper stopped
motorist for failing to drive within a single lane—and not to
investigate possible DUI—he needed probable cause to stop).
Commonwealth v. Salter, 121 A.3d 987, 992-93 (Pa.Super. 2015),
reargument denied (Oct. 14, 2015).
Initially, we note that while in his Omnibus Pretrial Motion Appellant
challenged only the propriety of the trial court’s determination that Corporal
Powers had reasonable suspicion to believe he had been driving under the
influence of alcohol, for the first time on appeal, Appellant develops an
argument that Corporal Powers lacked probable cause to conduct a traffic
stop to investigate a violation of Section 3361 of the Motor Vehicle Code.
Indeed, Appellant does not mention this Section of the Vehicle Code in his
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Omnibus Pretrial Motion or in his Memorandum of Law in support thereof.
Having failed to raise this specific issue before the trial court, Appellant has
waived it for appellate review. Pa.R.A.P. 302(a) (issues not raised in the
trial court are waived on appeal); Commonwealth v. Muniz, 5 A.3d 345,
352 (Pa.Super. 2010) (this Court will not consider an issue an appellant fails
to raise before the suppression court).
Nevertheless, as a discussion of whether Corporal Powers had
probable cause initially to stop Appellant for a Vehicle Code violation is
relevant to a consideration of whether he had reasonable suspicion to
believe that Appellant had been driving under the influence of alcohol, we
would necessarily engage in such analysis when deciding the merits of
Appellant’s second and third issues. However, before doing so, we must
consider the effect of the Stipulation into which Appellant and the
Commonwealth entered on March 27, 2015. See, supra. The Pennsylvania
rules applicable to stipulations are well-settled:
parties may bind themselves, even by a statement made in
court, on matters relating to individual rights and obligations, so
long as their stipulations do not affect the court's jurisdiction or
due order of business. . . . Stipulations to the admissibility of
evidence are common. They do not affect jurisdiction, nor
interfere with judicial business or convenience; instead, they aid
the court by saving it time which would otherwise be spent on
determining admissibility. The courts employ a contracts-law
analysis to interpret stipulations, so that the intent of the parties
is controlling. The language of a stipulation, like that of a
contract, is construed against the drafter. The court will hold a
party bound to his stipulation: concessions made in stipulations
are judicial admissions, and accordingly may not later in the
proceeding be contradicted by the party who made them.
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Tyler v. King, 496 A.2d 16, 21-22 (Pa.Super. 1985).
As noted above, a provision contained in the Stipulation reads as
follows: “[Appellant] hereby stipulates that Corp. Powers had probable
cause to arrest him for Driving Under the Influence in this matter.” See
Stipulation, dated March 27, 2015, at 2. As such, an application of the
aforesaid rules on stipulations to the instant matter suggests that Appellant
cannot challenge on appeal whether Corporal Powers satisfied the less
stringent standard of reasonable suspicion that he was driving under the
influence. Notwithstanding, such finding would be at odds with our Supreme
Court’s holding in Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa.
2014) that: “[a] colloquy insuring a knowing and voluntary decision is
required any time a defendant stipulates to evidence that virtually assures
his conviction because such a stipulation is functionally the same as a guilty
plea.”
Herein, no such colloquy appears in the record, although Appellant’s
admission that Corporal Powers had probable cause to arrest him on DUI
charges virtually assured his conviction. Indeed, counsel for neither party
nor the trial court acknowledged that provision in the Stipulation could have
affected the outcome of trial and essentially foreclosed any successful
challenge to the suppression court’s ruling. Also, Appellant’s filing of the
instant appeal evinces he did not intend to waive his right to challenge
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probable cause for his arrest. Notwithstanding, a review of the record
reveals Appellant’s arrest was proper.
Section 3361 of the Motor Vehicle Code provides:
§ 3361. Driving vehicle at safe speed
No person shall drive a vehicle at a speed greater than is
reasonable and prudent under the conditions and having regard
to the actual and potential hazards then existing, nor at a speed
greater than will permit the driver to bring his vehicle to a stop
within the assured clear distance ahead. Consistent with the
foregoing, every person shall drive at a safe and appropriate
speed when approaching and crossing an intersection or railroad
grade crossing, when approaching and going around curve,
when approaching a hill crest, when traveling upon any narrow
or winding roadway and when special hazards exist with respect
to pedestrians or other traffic or by reason of weather or
highway conditions.
75 Pa.C.S.A. § 3361 (emphasis added).
As it was not necessary for Corporal Powers to stop Appellant’s vehicle
to establish that he had been driving at an unsafe speed, Corporal Powers
needed to possess probable cause prior to doing so. Salter, supra.
Corporal Powers testified he heard a loud screech and when he looked up he
observed Appellant’s vehicle swerve to the left and make a sharp left turn in
an effort to avoid colliding with a fenced wall. N.T., 1/8/15, at 20, 30-31.
Appellant’s vehicle was the only one on the road at the time, and the
conditions were clear. Id. at 19, 25. In light of the way Appellant had
negotiated the turn, Corporal Powers was concerned he had been driving too
fast, and proceeded to effect a traffic stop. Id. at 25.
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Responsibly “approaching and going around a curve” are “conditions”
specifically enumerated in the statute that require a driver to proceed at “a
safe and appropriate speed.” When Corporal Powers heard a loud screech
and observed Appellant swerve to avoid a collision, he had probable cause to
stop Appellant’s vehicle, as such driving was a violation of the Vehicle Code.
Upon further investigation, Corporal Powers, who had arrested over
three hundred individuals for DUI, testified he observed Appellant’s glassy,
bloodshot eyes and profuse sweating and smelled the odor of alcohol on his
person, all classic signs of intoxication. Id. at 26-27. In addition, Appellant
admitted he “skidded and swerved” to avoid a pothole and that he had
consumed at least one alcoholic beverage. Id. Although Corporal Powers
did not administer field sobriety tests due to Appellant’s physical limitations,
he did offer a portable breath test which registered .12%. Appellant also
submitted to a blood test which revealed his blood alcohol level to be 0.204.3
See Affidavit of Probable Cause, dated 7/6/14.
The trial court found the testimony of Corporal Powers to be credible,
Trial Court Opinion, filed 10/6/15 at 6, ¶ 17, and this Court may not
substitute its credibility determinations for that of that court. Muniz, supra
at 352. For the foregoing reasons, we conclude Corporal Powers had
probable cause to conduct a traffic stop because Appellant had been driving
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3
75 Pa.C.S.A. § 3802(c) categorizes any alcohol concentration above 0.16%
as the “Highest rate of alcohol.”
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at an unsafe speed and, subsequently, for arresting Appellant under
suspicion of DUI. See Commonwealth v. Angel, 946 A.2d 115, 118
(Pa.Super. 2008) (stating “[p]robable cause exists where the officer has
knowledge of sufficient facts and circumstances to warrant a prudent person
to believe that the driver has been driving under the influence of alcohol or a
controlled substance.”).
Accordingly, we conclude the trial court properly denied Appellant’s
motion to suppress and affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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