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[U] Commonwealth v. Noga

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee,
v.
DARIUS A. NOGA, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence January 10, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001524-2012.

Joseph D. Seletyn, Esq.

BEFORE: BOWES, WECHT, and STABILE, JJ.

MEMORANDUM

BOWES, J.

Darius A. Noga appeals from the judgment of sentence of two to four days incarceration and six months probation imposed by the trial court after it found him guilty of Driving Under the Influence ("DUI") of Alcohol or Controlled Substance: .10% to less than .16%, and DUI-general impairment. We affirm.

The trial court cogently relayed the factual background of this matter as follows.

On November 27th of 2011, Officer [Michael] Apicella of the Stowe Township Police was in a marked patrol car on routine patrol. At approximately 1:47 a.m. was [sic] he was on Ridge Avenue where it intersects with Lamont Street, an unlined two lane road with one lane of travel in each direction. The road is curved with sidewalks on both sides.
Officer Apicella's attention was drawn to a vehicle parked on the side of the road with its engine running and running lights on. The car was legally parked in front of a house on Ridge Avenue. However, it was unusual to see a car parked in that particular place. Officer Apicella had never seen a car parked in that position in more than a decade of working for [the] Stowe Township Police Department.
As he slowly passed by, he observed Defendant with his head down, slumped over the steering wheel with his face turned away form [sic] the officer. Upon observing this[, ] Officer Apicella pulled alongside the vehicle and parked. Officer Apicella activated his overhead lights for safety reasons as his cruiser as [sic] was stopped in a lane of travel. At this time, Officer Apicella called dispatch to advise them that a man was slumped over in a vehicle on the side of the road. Because of the [o]fficer's concern for the welfare of Defendant, he exited his vehicle and proceeded to the vehicle to check on Defendant. Officer Apicella observed the Defendant slumped over the steering wheel.
After approximately fifteen (15) seconds, Defendant lifted his head and looked in the officer's direction. The Defendant opened his driver door and the [o]fficer immediately smelled an odor of alcohol emanating from his vehicle. The officer requested that Defendant turn off the vehicle and he complied. The officer asked Defendant if he was "okay?" Defendant appeared to be confused and stated he was from the North Hills and had driven to that location so a friend could visit someone. He told the [o]fficer he had been parked there for approximately ten minutes before the [o]fficer arrived.
In his encounter with Defendant, Officer Apicella observed slurred speech, glassy eyes and an odor of alcohol emitting from the Defendant. He observed an open bottle of wine in the center console that was half empty. When asked if he had any medical problems, Defendant indicated he did not. Defendant agreed to perform field sobriety tests. Defendant indicated he understood the instructions. The officer gave instructions for the walk and turn test, whereby the Defendant failed because he was unable to maintain his balance during the instruction phase, started before the instruction[s] were finished, and did not touch heel to toe on the first, second, and thirds steps, and used his arms for balance. The final test was the one-legged stand. Defendant failed this test by swaying while he was lifting his foot, and he also used his arms for balance.
A blood draw was conducted at 2:15 a.m. A blood alcohol content of ...

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