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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARY JAMAR PALMER, :
:
Appellant : No. 2414 EDA 2017
Appeal from the Judgment of Sentence June 8, 2017
in the Court of Common Pleas of Pike County,
Criminal Division at No(s): CP-52-CR-0000500-2015
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2018
Cary Jamar Palmer (“Palmer”) appeals from the judgment of sentence
imposed following his convictions of driving under the influence of alcohol
(“DUI”) and roadways laned for traffic. See 75 Pa.C.S.A. §§ 3802(a)(1);
3309(1). We affirm.
On July 19, 2015, at approximately 3:40 a.m., Pennsylvania State
Trooper Nicholas J. Scochin (“Trooper Scochin”) observed a vehicle, driven by
Palmer, travelling on Route 739 in Pike County. Trooper Scochin observed
Palmer’s vehicle weave back and forth across the lane of traffic over the double
yellow line and white fog line on multiple occasions. These observations were
confirmed by a motor vehicle recording in Trooper Scochin’s vehicle. Based
upon his training, Trooper Scochin believed the driver to be under the
influence of alcohol or drugs. As a result, Trooper Scochin initiated a traffic
stop of the vehicle.
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Upon approaching Palmer, Trooper Scochin noticed a strong smell of
alcohol emanating from Palmer. Trooper Scochin administered two field
sobriety tests on Palmer: the walk and turn test and the one-leg stand test.
Palmer passed the walk and turn test, but failed the one-leg stand test.
Thereafter, Trooper Scochin arrested Palmer on suspicion of DUI. Trooper
Scochin read Palmer the implied consent warnings, and asked Palmer to
submit to a breath test. Palmer refused to conduct the breath test.
Palmer was charged with DUI, roadways lined for traffic, and notice of
change of name or address. Palmer filed a Motion to Suppress Evidence,
arguing that the stop was illegal. After a hearing, the trial court denied the
Motion to Suppress. Following a non-jury trial, Palmer was found guilty of DUI
and roadways lined for traffic; and not guilty of notice of change of name or
address. The trial court sentenced Palmer to 72 hours to 6 months in prison,
and a $1,000 fine for the DUI conviction, and a $25 fine for the roadways lined
for traffic offense. The trial court granted Palmer immediate parole. Palmer
filed a Post-Sentence Motion, which the trial court denied.
Palmer filed a timely Notice of Appeal and a court-ordered Pennsylvania
Rule of Appellate Procedure 1925(b) Concise Statement.
On appeal, Palmer raises the following questions for our review:
1. Did the trial [c]ourt err when it determined that the stop of []
Palmer was lawful?
2. Did the trial [c]ourt err when it held probable cause existed to
stop [] Palmer?
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3. Was the conviction of [] Palmer against the weight of the
evidence?
Brief for Appellant at 5 (footnote omitted).
We will address Palmer’s first two claims together, as they are related.
Palmer contends that the trial court erred in denying his Motion to Suppress
Evidence, as the traffic stop was not supported by probable cause. Id. at 10,
13, 15. Palmer argues that while Trooper Scochin testified to observing
Palmer’s vehicle moving over the double yellow line and fog line multiple
times, he also confirmed that Palmer did not make any improper turns, was
not speeding, never left the lane of traffic, the roadway was curvy and narrow,
and there was no traffic on the road. Id. at 11-12, 16, 17; see also id. at
12 (noting that Trooper Scochin could not recall how many times Palmer
weaved over the lines). Palmer also asserts that because Trooper Scochin
initiated the stop to issue a citation for DUI, and did not conduct the stop for
any investigatory purpose, the Commonwealth should not be allowed to
support the stop under the reasonable suspicion standard. Id. at 14; see
also id. at 14-15 (arguing that even under the reasonable suspicion standard,
Palmer’s actions did not give rise to reasonable suspicion that he was driving
while under the influence). Palmer claims that because his conduct was
momentary in nature, and he posed no danger to himself or other motorists,
the stop was unlawful. Id. at 17.
Our standard of review is as follows:
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An appellate court’s standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, the appellate court is bound by those
findings and may reverse only if the court’s legal conclusions are
erroneous. Where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Commonwealth v. Ford, 175 A.3d 985, 989 (Pa. Super. 2017) (citation
omitted).
The Motor Vehicle Code sets forth a law enforcement officer’s authority
to stop a vehicle for an alleged violation as follows:
Whenever a police officer … 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.A. § 6308(b).
Traffic stops based on a reasonable suspicion: either of criminal
activity or a violation of the Motor Vehicle Code under the
authority of Section 6308(b) must serve a stated investigatory
purpose. In effect, the language of Section 6308(b)—to secure
such other information as the officer may reasonably believe to be
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necessary to enforce the provisions of this title—is conceptually
equivalent with the underlying purpose of a Terry[1] stop.
Mere reasonable suspicion will not justify a vehicle stop when the
driver’s detention cannot serve an investigatory purpose relevant
to the suspected violation. In such an instance, it is encumbent
[sic] upon the officer to articulate specific facts possessed by him,
at the time of the questioned stop, which would provide probable
cause to believe that the vehicle or the driver was in violation of
some provision of the Code.
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc)
(citations, quotation marks, and emphasis omitted, footnote added); see also
Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008) (stating that to
conduct a non-investigative stop for a violation of the Motor Vehicle Code, a
police officer must have probable cause to believe an offense has occurred).
Thus, there is a “distinction between the investigative potential of a vehicle
stop based on a reasonable suspicion of DUI as compared to other suspected
violations of the Motor Vehicle Code.” Commonwealth v. Busser, 56 A.3d
419, 423 (Pa. Super. 2012) (citation and quotation marks omitted); see also
Chase, 960 A.2d at 116 (noting that “[e]xtensive case law supports the
conclusion [that] a vehicle stop for DUI may be based on reasonable suspicion,
as a post-stop investigation is normally feasible.”); Commonwealth v.
Sands, 887 A.2d 261, 270 (Pa. Super. 2005) (stating that “a suspected
violation for DUI is in fact a scenario where further investigation almost
invariably leads to the most incriminating type of evidence.”).
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1 Terry v. Ohio, 392 U.S. 1 (1968).
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In order to determine whether the police officer had reasonable
suspicion, the totality of the circumstances must be considered.
Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011). In making this
determination, a court must give “due weight to the specific reasonable
inferences [the police officer] is entitled to draw from the facts in light of his
experience.” Sands, 887 A.2d at 272 (citation and quotation marks omitted).
“[T]he totality of the circumstances test does not limit our inquiry to an
examination of only those facts that clearly indicate criminal conduct. Rather,
even a combination of innocent facts, when taken together, may warrant
further investigation by the police officer.” Commonwealth v. Hilliar, 943
A.2d 984, 990 (Pa. Super. 2008) (citation omitted). Further, “when the
existence of reasonable suspicion combines with the expectation that the stop
will allow light to be shed on the relevant matters, the stop is not
unconstitutional.” Chase, 960 A.2d at 115.
At the suppression hearing, Trooper Scochin testified that on July 19,
2015, at approximately 3:40 a.m., he was on duty in a marked patrol vehicle
driving north on Route 739 in Blooming Grove Township, Pike County. N.T.,
3/10/16, at 7-8. Trooper Scochin observed a 2002 Pontiac Grand Prix driving
in the northbound lane, which was “consistently moving over the double
yellow line and white fog line multiple times.” Id. at 8; see also id. at 11,
13, 15. Trooper Scochin also noted that Palmer was not speeding, did not
make another vehicle take corrective action, and did not make an abrupt lane
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change. Id. at 12-14, 19. Trooper Scochin’s observations were confirmed by
a motor vehicle recording in his vehicle. Id. at 19. Due to his training and
observations, Trooper Scochin believed that the driver of the vehicle, Palmer,
was under the influence of alcohol or drugs. Id. at 8-9; see also id. at 9
(wherein Trooper Scochin states that in his training, detection of a potential
DUI driver would be swerving over lines, lane changing, sudden stops, sudden
turns, and alternating speeds). Trooper Scochin initiated a stop of the vehicle
to investigate his suspicion. Id. at 8, 10.
Our review reflects that Trooper Scochin stopped Palmer’s vehicle due
to suspicion of DUI. Such a violation requires further investigation and, in
order to initiate a legal stop, Trooper Scochin would have needed to possess
reasonable suspicion. See Chase, 960 A.2d at 116; Feczko, 10 A.3d at 1291.
Trooper Scochin’s observation of Palmer’s erratic driving, including weaving
and moving over the double yellow line and white fog line on multiple
occasions, was sufficient to impart reasonable suspicion warranting the stop
of Palmer’s vehicle.2 See Sands, 887 A.2d at 272 (stating that police officer
had reasonable suspicion to perform traffic stop to investigate suspected DUI
where officer witnessed appellant’s vehicle spotted weaving early in the
morning and crossing the fog line three times); see also Commonwealth v.
Fulton, 921 A.2d 1239, 1243 (Pa. Super. 2007) (holding that trooper, with
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2 Our own independent review of the motor vehicle recording, which was
included in the record, confirms Trooper Scochin’s observations.
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five years of law enforcement experience, had reasonable suspicion to stop
appellant’s vehicle where he observed the appellant swerve out of his lane of
travel three times in 30 seconds on a road shared by oncoming traffic). Thus,
the trial court did not err in refusing to suppress the evidence.3
In his second claim, Palmer contends that the verdict of DUI was against
the weight of the evidence. Brief for Appellant at 18, 23. Palmer argues that
his DUI conviction was based upon Trooper Scochin smelling alcohol on his
breath and Palmer’s weaving in his lane of traffic. Id. at 20, 22; see also id.
at 18-19. Palmer asserts that it shocks the conscience that he was found to
be incapable of safe driving, where there was no evidence that he crossed
lanes of traffic, was speeding, and refused to stop or failed the walk and turn.
Id. at 20; see also id. at 20, 22, 23 (wherein Palmer did not provide a breath
sample). Palmer claims that while Trooper Scochin smelled alcohol on his
breath, he did not exhibit any other signs of intoxication. Id. at 20-21. Palmer
further claims that he passed the walk and turn test, and the use of his arms
during the one-leg stand test did not demonstrate a failure to pass the test.
Id. at 21-23. Palmer also argues that he stopped his vehicle safely and
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3We note that the trial court, in denying the Motion to Suppress, found that
Trooper Scochin had probable cause to stop the vehicle to investigate the DUI.
See Order, 5/12/16, at 3 (unnumbered); see also Trial Court Opinion,
9/12/17, at 5-6. Despite the trial court’s application of the wrong standard,
we may affirm the trial court’s decision on any legal basis. See
Commonwealth v. Torres, 176 A.3d 292, 296 n.5 (Pa. Super. 2017).
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cooperated with Trooper Scochin. Id. at 22.4
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. In order for an appellant to
prevail on a challenge to the weight of the evidence, the evidence
must be so tenuous, vague and uncertain that the verdict shocks
the conscience of the court.
Commonwealth v. Mucci, 143 A.3d 399, 411 (Pa. Super. 2016) (citations
and quotation marks omitted).
To be convicted of DUI-general impairment, “[a]n 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.” 75 Pa.C.S.A. § 3802(a)(1).
The 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
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4 Palmer properly preserved his claim in his Post-Sentence Motion. See
Pa.R.Crim.P. 607(A). However, we note that in his Rule 1925(b) Concise
Statement, Palmer argued that the trial court “entered a verdict against the
weight of the evidence in that a reasonable doubt existed from both the
evidence presented and a lack of evidence presented from the Commonwealth
requiring a verdict of not guilty.” Concise Statement, 8/8/17. It is well-noted
that “a Concise Statement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no Concise Statement
at all.” Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super.
2015) (citation omitted); Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.
Super. 2006) (noting “statements in Rule 1925(b) that ‘the verdict of the jury
was against the evidence,’ ‘the verdict of the jury was against the weight of
the evidence,’ and ‘the verdict was against the law’ were too vague to permit
adequate review”) (citation omitted). Nevertheless, despite Palmer’s vague
argument in his Rule 1925(b) Concise Statement, we will address his claim on
appeal.
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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.... 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.
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009); see also
Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (noting that
“[t]he Commonwealth may prove that a person is incapable of safe driving
through the failure of a field sobriety test.”).
Here, Trooper Scochin observed Palmer swerving over the yellow center
line and the white fog line multiple times. N.T., 8/2/16, at 6-7. After Trooper
Scochin initiated a traffic stop, he noticed Palmer smelled of alcohol. Id. at
8; see also id. at 10 (wherein Palmer admitted to Trooper Scochin that he
had been drinking). Thereafter, Palmer failed the one-leg stand field sobriety
test. Id. at 10-11, 12. Based upon his training, Trooper Scochin stated that
Palmer was under the influence of alcohol to the extent that he was incapable
of safely driving the vehicle. Id. at 12-13.
The trial court weighed the evidence and found that Palmer committed
DUI. See Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super. 2017)
(stating that a police officer’s “testimony is sufficient to prove the elements of
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DUI-general impairment.”). We decline Palmer’s invitation to assume the role
of the fact-finder and to reweigh the evidence on appeal. Based upon the
credible evidence, we conclude that the trial court did not abuse its discretion
in denying Palmer’s weight of the evidence challenge.
Based upon the foregoing, we affirm Palmer’s judgment of sentence.5
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/18
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5 We note that enhanced penalties for a refusal to consent to a breath test do
not violate the holding in Birchfield v. North Dakota, 136 S. Ct. 2160
(2016). See Giron, 155 A.3d at 640 n.13 (noting that Birchfield “does not
prohibit a driver from being subjected to enhanced penalties under sections
3803 and 3804 for refusing to provide a breath test.”); see also Birchfield,
136 S. Ct. at 2184 (stating that “the Fourth Amendment permits warrantless
breath tests incident to arrests for drunk driving. The impact of breath tests
on privacy is slight[.]”).
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