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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LESLEY A. SCOTT
Appellant No. 1621 MDA 2015
Appeal from the Judgment of Sentence August 19, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001428-2014
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED JUNE 22, 2016
Appellant, Lesley A. Scott, appeals from the judgment of sentence
entered August 19, 2015, in the Court of Common Pleas of Franklin County,
following her conviction of Driving Under the Influence (“DUI”), General
Impairment, under 75 Pa.C.S.A. § 3802(a)(1). No relief is due.
On July 4, 2014, Pennsylvania State Troopers Jeremy Holderbaum and
Antoine Cox were on routine patrol in Franklin County when they observed a
vehicle turn off exit 24 on Interstate 81. See N.T., Suppression Hearing and
Bench Trial, 6/3/15 at 22. After turning off the exit, the vehicle failed to
discontinue its left turn signal for approximately three-quarters of a mile and
proceeded to pull into a Pacific Pride gas station that only services
commercial fleets. See id. at 22-23. When the Troopers pulled into the gas
station to see whether the driver needed assistance, they observed the
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Appellant exit the driver’s side door of the vehicle. See id. at 24. As Trooper
Cox approached the Appellant, he observed that her eyes were bloodshot
and glassy and he detected a strong odor of alcohol emanating from her
breath and person. See id. at 25.
When he asked Appellant whether she had recently consumed any
alcohol, she replied that she had two shots of whisky approximately one
hour prior. See id. Trooper Cox next instructed Appellant to perform field
sobriety tests, and concluded on the basis of Appellant’s performance that
she was under the influence of alcohol. See id. at 26-29. Trooper Cox
thereafter administered a breathalyzer test, the results of which indicated
that Appellant’s blood alcohol content was above the legal limit. See id. at
30-31. Based on his observations of Appellant, Appellant’s admission to
having recently consumed alcohol, Appellant’s failure to adequately perform
field sobriety tests, and the breathalyzer result, Trooper Cox concluded that
Appellant was not capable of safely driving her vehicle. See id. at 31.
Before Trooper Cox had placed Appellant under arrest, Trooper
Holderbaum informed him that there was an outstanding warrant for
Appellant’s arrest on a separate matter. See id. at 17-18; 31. After
Appellant was arrested and placed in the rear of the police car, she became
visibly irate and insisted that the Troopers shoot her. See id. at 13.
Appellant was subsequently transported to Chambersburg Hospital, where
she refused to submit to blood alcohol testing. See id. at 33.
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Appellant was charged with DUI and related charges. Appellant moved
to suppress evidence of her intoxication. Following a combined suppression
hearing and bench trial, the trial court denied Appellant’s motion and
convicted Appellant of DUI, general impairment. The trial court sentenced
Appellant to six months’ incarceration. This timely appeal followed.
Appellant raises the following issues for our review:
I. Whether the trial court erred in denying [Appellant’s]
motion to suppress evidence by holding that she was
subjected to a lawful arrest for DUI when (a) the trooper’s
dash-cam video clearly showed that she successfully
completed the field sobriety tests and there was no reason
to suspect that she was under the influence and (b) there
was no evidence of any erratic or unsafe driving?
II. Whether the trial court erred in concluding that the
Commonwealth had presented sufficient evidence at trial
to prove beyond a reasonable doubt that [Appellant] had
consumed alcohol to the point that she was incapable of
safely driving when (a) she clearly passed the field
sobriety tests as shown by the trooper’s dash-cam video
and (b) there was no evidence of any erratic or unsafe
driving?
Appellant’s Brief at 6.
We review the denial of a motion to suppress physical evidence as
follows:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
[W]e may consider only the evidence of the prosecution
and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
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whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Further, [i]t is within the suppression court's sole province
as factfinder to pass on the credibility of witnesses and the
weight to be given their testimony.
Commonwealth v. Houck, 102 A.3d 443, 445 (Pa. Super. 2014) (internal
citations and quotations omitted).
Appellant primarily argues that Trooper Cox did not have probable
cause to arrest her under suspicion of DUI – general impairment.1 “Probable
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.”
Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa. Super. 2008). Here,
Trooper Cox observed that Appellant had glassy, bloodshot eyes and he
detected a strong odor of alcohol emanating from Appellant’s person.
Appellant admitted that she consumed alcohol prior to driving and failed field
sobriety tests. A breathalyzer test administered prior to Appellant’s arrest
revealed a blood alcohol content of .10, which was well above the legal limit.
See N.T., Suppression Hearing and Bench Trial, 6/3/15 at 31. We do not
hesitate to conclude that these circumstances warranted the Trooper’s belief
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1
Notably, Appellant does not contest the legality of the Trooper’s initial
traffic stop. We also note that although Appellant contested the admission of
her refusal to submit to chemical testing in her Rule 1925(b) statement, she
has not pursued this argument on appeal.
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that Appellant had been driving under the influence of alcohol. See Hilliar,
supra (finding officers had probable cause to arrest Appellant under
suspicion of DUI where officers detected a strong odor of alcohol, Appellant
slurred his speech, and became verbally combative). See also
Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006)
(probable cause to arrest for DUI existed where Appellant smelled of alcohol,
had bloodshot eyes, and failed field sobriety tests).
Appellant argues that Trooper Cox’s testimony that she failed the field
sobriety tests is contradicted by the video recording from the Trooper’s
dash-cam video. She maintains that the video shows that she stood perfectly
still without swaying and that her speech was clear and not slurred. See
Appellant’s Brief at 21. Our review of the record reveals no inconsistencies in
Trooper Cox’s testimony. Although Trooper Cox conceded that Appellant
performed fairly well on the one leg stand test, he testified that, based upon
his training and experience, Appellant exhibited signs of intoxication during
the horizontal gaze nystagmus test and the walk and turn test. See N.T.,
Suppression Hearing and Bench Trial, 6/3/15 at 26-29. The trial court
credited Trooper Cox’s testimony. See Trial Court Opinion, 11/5/15 at 10.
“It is well established that our Court will not reverse a trial court’s credibility
determination absent the court's abuse of discretion as fact finder.”
Hughes, supra, at 928. Appellant’s argument in this regard is therefore
unavailing.
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Accordingly, as there existed probable cause to arrest Appellant under
suspicion of driving under the influence of alcohol, we find the trial court’s
denial of Appellant’s suppression motion was without error.
Appellant next challenges the sufficiency of the evidence in support of
her conviction of DUI – general impairment. We review a challenge to the
sufficiency of the evidence as follows:
The standard we apply when reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
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. Furthermore, when reviewing a sufficiency claim, our
Court is required to give the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
However, the inferences must flow from facts and circumstances
proven in the record, and must be of such volume and quality as
to overcome the presumption of innocence and satisfy the jury
of an accused’s guilt beyond a reasonable doubt. The trier of fact
cannot base a conviction on conjecture and speculation and a
verdict which is premised on suspicion will fail even under the
limited scrutiny of appellate review.
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Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)
(citation omitted).
Appellant was convicted of DUI – general impairment, pursuant to
subsection 3802(a)(1) of the Vehicle Code, which provides as follows:
(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.
“[S]ubsection 3802(a)(1) is an ‘at the time of driving’ offense, requiring that
the Commonwealth prove the following elements: the accused was driving,
operating, or in actual physical control of the movement of a vehicle during
the time when he or she was rendered incapable of safely doing so due to
the consumption of alcohol.” Commonwealth v. Segida, 985 A.2d 871,
879 (Pa. 2009).
Appellant concedes that she was driving, operating or in actual
physical control of the movement of a vehicle. She contends, however, that
the evidence was insufficient to establish that she was incapable of safely
driving due to the consumption of alcohol. See Appellant’s Brief at 23-26.
In Segida, the Pennsylvania Supreme Court described the types of evidence
that the Commonwealth may offer to prove this element:
Section 3802(a)(1), like its predecessor [statute], is a general
provision and provides no specific restraint upon the
Commonwealth in the manner in which it may prove that an
accused operated a vehicle under the influence of alcohol to a
degree which rendered him incapable of safe driving.... The
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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 and the two[-]hour time limit for measuring blood
alcohol level does not apply. Blood alcohol level is admissible in
a subsection 3801(a)(1) case only insofar as it is relevant to and
probative of the accused's ability to drive safely at the time he or
she was driving. The weight to be assigned these various types
of 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.
Segida, 985 A.2d at 879.
In support of her argument, Appellant reiterates her claim that the
dash-cam video belied Trooper Cox’s testimony that she failed the field
sobriety tests. She additionally maintains that there is no evidence that she
was driving erratically or that her speech was impaired. Despite Appellant’s
attempt to portray the evidence in a light favorable to her defense, we note
that our relevant inquiry in conducting a sufficiency analysis requires that we
view the evidence in the light most favorable to the verdict winner—in this
case, the Commonwealth.
When viewed in this light, we find that the evidence presented at trial
was sufficient to enable the factfinder to conclude that Appellant was
incapable of safely driving her vehicle due to the consumption of alcohol. As
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noted, Trooper Cox observed that Appellant had glassy, bloodshot eyes and
he detected a strong odor of alcohol emanating from Appellant’s person.
Appellant admitted that she consumed alcohol prior to driving and failed field
sobriety tests. A breathalyzer test administered prior to Appellant’s arrest
revealed a blood alcohol content of .10. Trooper Cox’s observations of
Appellant led him to believe that she was intoxicated.
“Evidence that the driver was not in control of himself, such as failing
to pass a field sobriety test, may establish that the driver was under the
influence of alcohol to a degree which rendered him incapable of safe
driving, notwithstanding the absence of evidence of erratic or unsafe
driving.” Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. 2003)
(citation omitted). See also Commonwealth v. Salter, 121 A.3d 987, 995
(Pa. Super. 2015) (“Erratic driving is not a super-factor, much less one
determinative of DUI.”). Despite the lack of other positive indicators of
intoxication such as slurred speech or erratic driving, we find that Appellant’s
failure of the field sobriety tests, combined with Appellant’s bloodshot eyes
and the odor of alcohol on her person, was sufficient to establish she was
incapable of safe driving due to the consumption of alcohol. Thus, the
evidence was more than sufficient to support Appellant’s conviction of
subsection 3802(a)(1).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2016
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Com. v. Scott, L.
Combined Opinion