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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
COLEMAN KEARY SMITH.
Appellant No. 184 MDA 2016
Appeal from the Judgment of Sentence January 6, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000664-2015
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED DECEMBER 05, 2016
Coleman Keary Smith appeals from the judgment of sentence, entered
in the Court of Common Pleas of Franklin County, after being convicted of
one count each of Driving Under the Influence (DUI) – high rate of alcohol1
and DUI – general impairment.2 Smith was sentenced to 30 days to 6
months’ incarceration. After careful review, we affirm.
On appeal, Smith presents the following issue for our consideration:
Did the suppression court err[] in denying Appellant’s motion to
suppress evidence when the arresting officer filed to administer
and correctly score the horizontal gaze nystagmus [HGN]
standard field sobriety test, falsified his police report, provided
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1
75 Pa.C.S. § 3802(b).
2
75 Pa.C.S. § 3802(a)(1).
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false testimony and cross examination and acknowledged he did
not know how to administer the field sobriety test.3
Appellant’s Brief, at 4.
In essence, Smith attacks the trial court’s credibility determination
with regard to the testimony of his arresting officer, Trooper Hanko.
Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (“It is
within the suppression court's sole province as factfinder to pass on the
credibility of witnesses and the weight to be given to their testimony[; t]he
suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.”). Smith asserts that because the
trooper did not administer the HGN test according to the National Highway
Traffic Safety Student Manual and that he “falsified the police report and
[that] his testimony [was] intended to deceive,” we should reverse the
suppression court. Appellant’s Brief, at 9. We disagree.
Based on a totality of the circumstances, there was sufficient evidence
to support the trooper’s stop of Smith’s vehicle and his subsequent arrest for
suspected DUI. Trooper Hanko testified that he stopped Smith’s silver Ford
truck after he observed it cross the double-yellow center lines of the road
two times. N.T. Suppression Hearing, 12/7/15, at 11. Upon stopping
Smith’s vehicle, the trooper testified that Smith had difficulty locating his
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3
An appellate court does not reverse the suppression court's denial of an
accused's motion to suppress if the factual findings and legal conclusions
drawn therefrom by the suppression court are supported by the record.
Commonwealth v. Bracey, 662 A.2d 1062 (Pa. 1995).
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driver’s license, slurred speech, bloodshot and glassy eyes, smelled of
alcohol, and admitted to drinking multiple beers prior to driving. Id. at 12,
19-21. Moreover, Trooper Hanko was trained in the detection of impaired
drivers, id. at 5-8, and, in his career, had stopped approximately 40 drivers
suspected to be under the influence, some of which led to DUI arrests. Id.
at 8-9.
After reviewing the parties’ briefs, relevant law and certified record on
appeal, we affirm Smith’s judgment of sentence based on the April 5, 2016,
opinion authored by the Honorable Carol L. Van Horn. See Commonwealth
v. Seguida, 985 A.2d 871, 879 (Pa. 2009) (types of evidence
Commonwealth may proffer in section 3802(a)(1) prosecution include, but
are not limited to, “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”); see also Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa.
Super. 2011) (sustaining conviction for DUI where defendant failed to stop
at stop sign, smelled of alcohol, and failed four separate field sobriety tests).
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4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2016
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4
We instruct the parties to attach a copy of President Judge Van Horn’s
opinion in the event of further proceedings in the matter.
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Circulated 11/10/2016 08:24 AM