J-S46023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DALE LEE TOOT,
Appellant No. 247 MDA 2017
Appeal from the Judgment of Sentence January 10, 2017
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000674-2016
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED AUGUST 29, 2017
Appellant, Dale Lee Toot, appeals from the judgment of sentence
entered on January 10, 2017, following his bench trial convictions for driving
under the influence of alcohol (DUI) (general impairment - incapable of safe
driving), DUI (general impairment - blood alcohol content (BAC) between
.08% and .10%), and driving while operating privilege is suspended or
revoked.1 We affirm.
The trial court summarized the facts of this case as follows:
On February 5, 2016, at approximately 12:48 a.m., Officer
[Anthony] Gilberto [an officer with the Littlestown Police
Department] was on duty, in full uniform, in a marked police
vehicle when he observed a blue pick-up truck pull from Patrick
Avenue eastbound on to West King Street in the Borough of
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1
75 Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 3802(a)(2), and 75 Pa.C.S.A.
§ 1543, respectively.
* Former Justice specially assigned to the Superior Court.
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Littlestown. The blue pick-up truck did not appear to stop at the
posted stop sign. Within minutes[,] Officer Gilberto observed
what appeared to be the same blue pick-up truck turn right from
Charles Street onto South Queen Street in Littlestown Borough.
He then observed the pick-up truck continue [s]outhbound on
South Queen Street. Officer Gilberto was directly behind the
blue pick-up truck on South Queen Street. Officer Gilberto
observed the blue pick-up truck slow to an almost complete stop
at the intersection of South Queen Street and Boyer Street.
Officer Gilberto then observed the blue pick-up truck activate its
right turn signal and make a right turn onto Boyer Street at an
unusually slow rate of speed. Officer Gilberto followed the blue
pick-up truck onto Boyer Street and observed the blue pick-up
truck make a right turn onto M Street.
Officer Gilberto lost sight of the blue pick-up truck for “less than
two seconds” and made a right turn onto M Street. Officer
Gilberto observed a blue Ford pick-up truck pull to the curb in
the 200 block of M Street. Officer Gilberto observed a male
occupant step out from the driver’s door of the pick-up truck,
look in the direction of the police vehicle, immediately get back
into the pick-up truck, shut the door and lay down on the floor of
the pick-up truck. Officer Gilberto then proceeded [n]orthbound
on M Street past the pick-up truck and stopped approximately
fifty feet ahead of the pick-up truck. Officer Gilberto observed
the driver sit back up, look in the direction of his police vehicle
and then quickly lay back down. Officer Gilberto backed the
police vehicle down M Street to the rear of the blue Ford pick-up
truck. Officer Gilberto never activated his lights or sirens.
Officer Gilberto checked the registration of the pick-up truck and
observed that it was registered to a Gary Rosenberry, Sr.
Officer Gilberto knows Gary Rosenberry, Sr., and the driver of
the blue pick-up truck was not Gary Rosenberry, Sr.
Officer Gilberto exited his patrol vehicle, approached the parked
pick-up truck and observed a male (later identified as
[Appellant]) laying [sic] on the floor of the pick-up truck. There
were no other occupants in the vehicle. Officer Gilberto knocked
on the driver’s side window. [Appellant] did not move or
respond. Officer Gilberto knocked several more times, stated “I
see you on the floor” and asked [Appellant] to sit up.
[Appellant] did not move or respond to Officer Gilberto. Officer
Gilberto then opened the driver’s door and asked [Appellant]
what he was doing. [Appellant] did not respond. Officer
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Gilberto asked[,] “Sir, are you okay?” The driver then got off
the floor and advised “I’m fine. I’m fine.”
While interacting with [Appellant], Officer Gilberto observed
[Appellant’s] face was flushed, his eyes were red, and his
movements and speech were slow. Officer Gilberto also
detected a strong odor of alcoholic beverage coming from
[Appellant’s] breath. [Appellant’s] responses concerning the
ownership of the pick-up truck were deceptive and unclear.
[Appellant] advised Officer Gilberto that he had been shooting
pool at the North Street Tavern in Hanover and that he had “two
beers.” [Appellant] later advised that he had three “Bud Lights.”
When [Appellant] exited the pick-up truck his movements were
uncoordinated and slow. At Officer Gilberto’s direction,
[Appellant] submitted to standard field sobriety tests (SFST). In
Officer Gilberto’s opinion, [Appellant] did not follow proper
instructions concerning the SFST tests, and [Appellant] showed
signs of impairment. At Officer Gilberto’s direction, [Appellant]
agreed to take a [portable breathalyzer test (PBT)]. [Appellant]
did not follow Officer Gilberto’s instructions and appeared to be
“sucking in” instead of “blowing” during the PBT test.
[Appellant] did this approximately four times. Officer Gilberto
was unable to obtain a result.
Based on [] Officer Gilberto’s observations of [Appellant], Officer
Gilberto placed [Appellant] under arrest for DUI, handcuffed him
and placed him in the back of the police vehicle. Officer Gilberto
transported [Appellant] to Gettysburg Hospital. While driving to
Gettysburg Hospital, Officer Gilberto orally advised [Appellant] of
his Miranda[2] warnings. Officer Gilberto arrived at Gettysburg
Hospital at approximately 1:22 a.m. While [Appellant] was in
custody and handcuffed, Officer Gilberto asked “are you willing
to submit to a chemical test of your blood?” [Appellant] advised
he would. Officer Gilberto escorted Appellant into Gettysburg
Hospital [] at 1:40 a.m. [Appellant] consented and blood was
drawn from [Appellant]. Officer Gilberto never read [a] DL-26
form to [Appellant] nor did Officer Gilberto have [Appellant] sign
[a] DL-26 form. Officer Gilberto testified he does not read the
DL-26 form to a DUI [d]efendant unless a DUI [d]efendant
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
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refuses to submit to a blood draw. Analysis of [Appellant’s]
blood by NMS Labs revealed a [BAC] of .102.
Trial Court Opinion, 9/14/2016, at 1-5 (unpaginated) (numbered paragraphs
omitted).
The Commonwealth charged Appellant with the aforementioned
charges.3 On July 19, 2016, Appellant filed a motion to suppress. The trial
court held a suppression hearing on August 25, 2016, wherein the
Commonwealth presented the testimony of Officer Gilberto. On September
14, 2016, the trial court issued an opinion and order denying suppression.
The trial court held a bench trial on January 10, 2017 and convicted
Appellant of DUI (general impairment – incapable of safe driving), DUI
(general impairment – blood alcohol content (BAC) between .08% and
.10%), and driving while operating privilege is suspended or revoked. On
January 10, 2017, after Appellant waived a presentence investigation, the
trial court sentenced Appellant to six months of probation for DUI (general
impairment – incapable of safe driving). The other DUI conviction merged
for sentencing purposes. The trial court rendered no further penalty on the
careless driving summary offense. This timely appeal ensued.4
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3
The Commonwealth also charged Appellant with DUI (high rate of alcohol),
75 Pa.C.S.A. § 3802(b). However, the trial court found him not guilty of this
offense.
4
On January 31, 2017, Appellant filed a notice of appeal. On February 2,
2017, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days of the order. Appellant filed an untimely Rule 1925(b)
(Footnote Continued Next Page)
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On appeal, Appellant presents the following issue for our review:
I. Whether the suppression court properly denied Appellant’s
challenge to the sufficiency of probable cause to arrest him
for DUI[?]
Appellant’s Brief at 5 (complete capitalization omitted).
Appellant claims that the suppression court erred and abused its
discretion by denying suppression, because the police lacked probable cause
to arrest him. Id. at 10-16. More specifically, Appellant contends that,
“[a]t no time did Officer Gilberto see who was driving the vehicle in
question, or even the number of occupants.” Id. at 11. Appellant claims
that the trial court precluded him from cross-examining Officer Gilberto
regarding the “locations of the streets in question, their location to each
other, and their distances from each other[,]” because “the evidence would
have shown not only did [Officer Gilberto] lose sight of the vehicle, but that
he lost sight of the vehicle for a substantial period of time.” Id. at 13.
Appellant also contends that the trial court denied Appellant the ability to
refresh Officer Gilberto’s memory with the affidavit of probable cause and his
police report and “[h]ad Appellant been permitted to cross-examine [Officer]
_______________________
(Footnote Continued)
statement on March 2, 2017. The trial court overlooked the late filing and
filed an opinion pursuant to Pa.R.A.P. 1925(a) on March 13, 2017, relying on
its prior opinion denying suppression entered on September 14, 2016.
Because the trial court overlooked the untimely nature of Appellant’s
submission and addressed the issue currently on appeal, we will address the
merits of the issue presented. See Commonwealth v. Priest, 18 A.3d
1235, 1238 n.5 (Pa. Super. 2011) (citations omitted).
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Gilberto on his previous statements, it would have shown the court that
[Officer] Gilberto, according to his written reports, never saw a ‘male
occupant exit the vehicle.’” Id. at 14. He claims that Officer Gilberto’s
“written statements would have also shown that [Officer] Gilberto did not
become ‘suspicious’ of anything, regarding the vehicle in question, until he
passed the already parked car and saw, in his rear-view mirror, a head pop
up.” Id. Appellant, in sum, maintains that because the trial court
improperly excluded cross-examinations regarding the suspect’s connection
to the alleged crimes, he was erroneously denied an opportunity to dispute
the identity of the individual who operated the pick-up truck while impaired.
Our Supreme Court determined
that 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. We are bound by the suppression court's factual
findings so long as they are supported by the record; our
standard of review on questions of law is de novo. Where, as
here, the defendant is appealing the ruling of the suppression
court, we may consider only the evidence of the Commonwealth
and so much of the evidence for the defense as remains
uncontradicted. Our scope of review of suppression rulings
includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted).
Regarding probable cause to arrest, our Supreme Court has held:
There is, of course, no doubt that the issuing authority must
have probable cause to believe a suspect guilty of a crime
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charged against him before [effectuating] his arrest. This is
ancient law and basic to our concept of freedom. In determining
whether probable cause exists, we apply a totality of the
circumstances test. Probable cause to arrest exists when the
facts and circumstances within the police officer's knowledge and
of which the officer has reasonably trustworthy information are
sufficient in themselves to warrant a person of reasonable
caution in the belief that an offense has been committed by the
person to be arrested. The question we ask is not whether the
officer's belief was correct or more likely true than false. Rather,
we require only a probability, and not a prima facie showing, of
criminal activity.
* * *
In reviewing whether probable cause exists, we afford deference
to a [trial court’s] finding of probable cause. Finally, we note
that the fact that other inferences could be drawn does not
demonstrate that the inference that was drawn by the police []
was unreasonable.
Commonwealth v. Burno, 154 A.3d 764, 781 (Pa. 2017) (internal
citations, original brackets, and quotations omitted).
Here, the trial court determined:
Under the totality of the circumstances, Officer Gilberto had
probable cause to arrest [Appellant] for DUI, including probable
cause to believe [Appellant] was driving the blue pick-up truck.
Officer Gilberto observed the pick-up truck turn onto South
Queen Street. Officer Gilberto maintained visual contact with
the pick-up truck except for a period of less than two seconds
when the pick-up truck traveled from Boyer Street onto M
Street. Officer Gilberto observed the pick-up truck pull to the
curb on M Street. Officer Gilberto never observed any other
individual exit or leave the area of the pick-up truck. When
Officer Gilberto approached the pick-up truck, the only occupant
of the pick-up truck was [Appellant], who was suspiciously laying
[sic] on the floor of the pick-up truck. Officer Gilberto clearly
had probable cause to believe [Appellant] was operating the
pick-up truck.
Trial Court Opinion, 9/14/2016, at 7-8 (unpaginated).
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Upon review of the record, we agree with the trial court’s assessment
that the police had probable cause to arrest Appellant and, therefore, the
trial court did not abuse its discretion in denying suppression. At the
suppression hearing, Officer Gilberto admitted that he did not see Appellant
driving the car. N.T., 8/25/2016, at 47. However, Officer Gilberto testified
that the blue pick-up truck he was following was “very distinctive looking.”
Id. at 12. Officer Gilberto testified that he only lost sight of the vehicle for
“less than two seconds.” Id. at 59. Thus, we reject Appellant’s suggestion
that it was unclear how long Officer Gilberto lost visual contact with the
vehicle in question. Defense counsel also sought to have Officer Gilberto
draw a diagram of the streets at issue herein; however, the trial court
prohibited it, because there was no dispute that the police did not institute a
traffic stop in this case. Id. at 34. Thus, such cross-examination regarding
precise distances and locations of the streets traveled was irrelevant as to
whether there was probable cause to arrest Appellant for DUI. However, the
trial court did allow Appellant to cross-examine Officer Gilberto regarding his
account of events leading up to Appellant’s arrest, including following the
blue pick-up truck. Id. at 35-40. Officer Gilberto testified that he saw
Appellant get out of the vehicle from the driver’s side, look back at the
marked police car, and then jump back in and hide on the floor of the truck.
Id. at 15, 58. Officer Gilberto did not observe anyone else in the vehicle or
in the area around the vehicle when he reestablished contact after losing the
vehicle for less than two seconds. Id. at 58. Officer Gilberto identified
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Appellant in court. Id. at 18. Finally, we note that Officer Gilberto testified
that Appellant admitted that he drove past his ex-girlfriend’s house after
leaving the North Street Tavern, and just prior to this interaction with police.
Id. at 59-60. Based upon all of the foregoing, we conclude that the facts
and circumstances within Officer Gilberto's knowledge were sufficient to
warrant a person of reasonable caution to believe that Appellant was driving
the blue pick-up truck.5 Hence, we affirm the trial court’s denial of
suppression.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2017
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5
Because Appellant does not challenge the trial court’s determination that
Officer Gilberto’s observations provided probable cause to believe that
Appellant was intoxicated, we need not address that aspect of the case.
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