March 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
MICHAEL HILLARD, Appellant
Appeal from the Judgment of Sentence of January 22, 2013 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000700-2012
BEFORE: PANELLA, OLSON AND WECHT, JJ.
Appellant, Michael Hillard, appeals from the judgment of sentence entered on January 22, 2013, as made final by the denial of Appellant's post-sentence motion on March 7, 2013. We affirm.
On May 11, 2012, Appellant was arrested for driving under the influence of alcohol. On October 12, 2012, Appellant filed a pre-trial motion and claimed, amongst other things that: 1) all of the Commonwealth's evidence must be suppressed, as the police did not have reasonable suspicion or probable cause to initially stop his vehicle, and 2) his breath alcohol concentration test results must be suppressed, as the police did not "continuously observe [Appellant] for the requisite  minute period of time before . . . the first alcohol breath test." Appellant's Pre-Trial Motion, 10/12/12, at 5-6.
During the suppression hearing, the Commonwealth presented the testimony of the arresting officer, Pennsylvania State Trooper Christopher Shaw Pifer. Trooper Pifer testified that, at approximately 11:53 p.m. on May 10, 2012, he was on routine patrol in Morris Township and was driving his patrol car south on State Route 53. N.T. Suppression Hearing, 11/20/12, at 9. The Trooper testified that, at that time, he observed a silver SUV that was also traveling south on State Route 53. Id. The Trooper later identified Appellant as the driver of the SUV. Id. at 12. The Trooper testified that, when he initially observed Appellant's SUV, the SUV was "straddling the center line" of the road. Id. at 10 and 12.
As the Trooper testified, he followed Appellant's SUV "for a while" and determined that the vehicle was traveling 50 miles per hour in a 35 mile per hour zone. Id. at 10. The Trooper testified that he "continued to follow the vehicle until [he] found a safe location to activate [his] lights for a traffic stop" and that, when they reached a place of safety, the Trooper activated his lights and pulled Appellant over to the side of the road. Id. Trooper Pifer testified that he effectuated the traffic stop at 11:53 p.m. on May 10, 2012. Id. at 16.
Trooper Pifer testified that he approached Appellant's vehicle, spoke with Appellant, and concluded that Appellant was driving under the influence of alcohol. Id. at 11. After Appellant failed field sobriety tests, Trooper Pifer placed Appellant under arrest, handcuffed Appellant, and drove Appellant back to the barracks. Id. As the Trooper testified, he "physically took off to return to the" barracks at 12:03 a.m. on May 11, 2012, and arrived at the barracks at 12:19 a.m. Thus, the Trooper was watching over Appellant – either on the side of the road or in the patrol car – from approximately 11:53 on May 10, 2012 until 12:19 a.m. on May 11, 2012.
Trooper Pifer testified that, when they arrived at the barracks, he brought Appellant into the patrol room and began to fill out paperwork. The Trooper then administered a breath alcohol test on Appellant at 12:37 a.m. Id. at 16-17. As Trooper Pifer testified, during the entire time they were in the barracks, Appellant was "within five or ten feet" from the Trooper and was "in [the Trooper's] view the whole time." Id. at 11 and 18. Further, the Trooper testified that, during the entire time he was with Appellant – from approximately 11:53 a.m. on May 10, 2012 until 12:37 a.m. on May 11, 2012 – Appellant did not: eat food, drink, vomit, consume anything, take anything into his mouth, belch, or burp. Id. at 11 and 19.
The trial court denied Appellant's pre-trial motion on November 30, 2012 and, on December 14, 2012, Appellant proceeded to a bench trial. During trial, Trooper Pifer testified consistently with his suppression hearing testimony. See N.T. Trial, 12/14/12, at 42-83.
At trial, the Commonwealth also introduced evidence of Appellant's breath alcohol concentration. As Trooper Pifer testified, Appellant's first breath test revealed that Appellant's breath alcohol concentration was .083; Appellant's second breath test revealed that Appellant's breath alcohol concentration was .082. Id. at 56.
Further, during Appellant's trial, the Commonwealth introduced the testimony of Pennsylvania State Trooper Richard Magnuson. Trooper Magnuson testified that he performed monthly calibrations on the particular device that the State Police used to test Appellant's breath alcohol concentration. Id. at 27. Trooper Magnuson testified that, prior to Appellant's test at 12:37 a.m. on May 11, 2012, the Trooper had last calibrated the device at 1:36 p.m. on April 11, 2012. Id. at 26-29; Commonwealth's Exhibit 2. During the April calibration, the device had an average deviation of 0.0014. N.T. Trial, 12/14/12, at 26-29;
Commonwealth's Exhibit 2. Moreover, Trooper Magnuson testified that he performed a yearly calibration on the device and that, during the June 26, 2011 yearly calibration, the device had: a 0.000 average deviation for a 0.05 solution; a 0.000 average deviation for a 0.10 solution; and, a 0.002 average deviation for a 0.15 deviation. N.T. Trial, 12/14/12, at 26-29; Commonwealth's Exhibit 2.
Appellant also testified at trial. Appellant testified that, on the night in question: he only drank two 16-ounce beers, he was not intoxicated, he never straddled the road's center dividing line, and he was not speeding. N.T. Trial, 12/14/12, at 83-103.
The trial court found Appellant guilty of driving under the influence of alcohol (general impairment), pursuant to 75 Pa.C.S.A. § 3802(a)(2). This statute provides:
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 alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(a)(2).
On January 22, 2013, the trial court sentenced Appellant to six months of probation for his conviction.
On January 28, 2013, Appellant filed a timely post-sentence motion and raised the following claims: 1) the trial court erred in failing to suppress the evidence against him because the initial traffic stop was not supported by either reasonable suspicion or probable cause; 2) the trial court erred in failing to suppress the breath alcohol test results, as Appellant was not "'continuously observed' for the requisite  minute period of time;" 3) the trial court erred in failing to suppress the breath alcohol test results since the breath testing device was not inspected within the requisite 30-day time period; and, 4) the evidence was insufficient to sustain Appellant's conviction. Appellant's Post-Sentence Motion, 1/28/13, at 1-3.
The trial court denied Appellant's post-sentence motion on March 7, 2013 and Appellant filed a timely notice of appeal to this Court. Now on appeal, Appellant raises the following claims:
[1.] The trial court erred in refusing to declare the traffic stop illegal under the Fourth Amendment and the Fourteenth Amendment of the United States Constitution as well as Article I, Section 8 of the Pennsylvania Constitution and suppress all fruit of the poisonous tree including the .082% [breath alcohol concentration test] result since the officer did not have probable cause to effectuate the traffic [stop].
A. The claim that [Appellant] crossed over and straddled the center line immediately before Trooper Pifer activated his overhead lights was refuted by the [mobile video recording ("MVR") device in the Trooper's patrol car] and Trooper Pifer's belated explanation for why this act was not depicted on the MVR proves that the putative crossing did not occur, or at [a] minimum did not create a safety hazard such that there was no probable cause for the stop.
B. The claim that [Appellant] was speeding as supposedly demonstrated by a speedometer pace was refuted by the winding nature of the roadway, the presence of warning signs that required a driver to reduce their speed in making these turns, the fact that the officer made up  yards and then  yards on [Appellant's] vehicle over the pace distance, and the absence of any supporting documentation in Trooper Pifer's supplemental report including his failure to cite [Appellant] with speeding shows that there was no probable cause for the traffic stop.
[2.] The trial court erred in admitting the [breath alcohol concentration test] results from the DataMaster DMT since Appellant . . . was not "continuously observed" for the requisite  minute period of time and he testified to regurgitating within  minutes of the first breath test, which testimony was not refuted by a preponderance of the evidence all in contravention of 67 [Pa. Code] § 77.24(a).
[3.] The trial court erred in admitting the [breath alcohol concentration test] results from the DataMaster DMT since the last accuracy inspection test for the DataMaster DMT was not completed "within  days prior to using the breath test equipment to perform an actual breath test" per 67 Pa. Code § 77.25(a).
[4.] The trial court erred in finding Appellant . . . guilty of 75 Pa.C.S. § 3802(a)(2) (driving under the influence – lowest tier – first offense)  because the evidence was insufficient to support such a conviction in that the Commonwealth's witness admitted that the DataMaster DMT had a margin of error of .009 per test in the context of unrefuted testimony that [Appellant] had burped within  minutes of the breath test, which resulted in the presence of ambient alcohol and produced an artificially high [breath alcohol concentration test] reading, the subject DataMaster DMT was administered with either an outdated accuracy inspection test or an accuracy inspection test that was near its limitations period and did not pass an accuracy inspection test that was given later that same day, and he was acquitted of being under the influence of alcohol to such a degree that he was incapable of safe driving.
Appellant's Brief at i-ii.
Appellant first claims that the trial court erred in failing to suppress the evidence against him, as Trooper Pifer did not have probable cause to make the initial traffic stop. This claim fails.
"Once a motion to suppress evidence has been filed, it is the Commonwealth's burden to prove, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights." Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an appeal from the denial of a motion to suppress, our Supreme Court has declared:
Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. When reviewing the ruling of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (internal citations omitted). "It 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. Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006).
"The Fourth Amendment to the [United States] Constitution and Article I, Section 8 of [the Pennsylvania] Constitution protect citizens from unreasonable searches and seizures." Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa.Super. 2012). To safeguard our right to be free from unreasonable searches and seizures, "courts require police to articulate the basis for their interaction with citizens in [three] increasingly intrusive situations." McAdoo, 46 A.3d at 784. Our Supreme Court has categorized these three situations as follows:
The first category, a mere encounter or request for information, does not need to be supported by any level of suspicion, and does not carry any official compulsion to stop or respond. The second category, an investigative detention, derives from Terry v. Ohio and its progeny: such a detention is lawful if supported by reasonable suspicion because, although it subjects a suspect to a stop and a period of detention, it does not involve such coercive conditions as to constitute the functional equivalent of an arrest. The final category, the arrest or custodial detention, must be supported by probable cause.
Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003).
a vehicle stop based solely on offenses not 'investigatable' cannot be justified by a mere reasonable suspicion, because the purposes of a Terry stop do not exist – maintaining the status quo while investigating is inapplicable where there is nothing further to investigate. An officer must have probable cause to make a constitutional vehicle stop for ['non-investigatory' Vehicle Code] offenses.
Commonwealth v. Chase, 960 A.2d 108, 115-116 (Pa. 2008); see also Commonwealth v. Feczko, 10 A.3d 1285, 1290-1291 (Pa.Super. 2010) (en banc).
Viewing the evidence from the suppression hearing in the light most favorable to the Commonwealth, it is clear that Trooper Pifer had probable cause to make the initial traffic stop. Certainly, during the suppression hearing, Trooper Pifer explicitly testified that he pulled Appellant over because Appellant was traveling 50 miles per hour in a 35 mile per hour zone. N.T. Suppression Hearing, 11/20/12, at 10. Moreover, the suppression court credited Trooper Pifer's testimony. Trial Court Opinion, 8/21/13, at 4.
On appeal, Appellant simply claims that the suppression court should have disbelieved Trooper Pifer's testimony, as the road was "winding" and the Trooper would not have been able to obtain a valid speedometer reading on such a road. Appellant's Brief at 26. This argument seeks to contest the weight of the evidence – and cannot succeed under our standard of review. Eichinger, 915 A.2d at 1134 ("[w]hen reviewing the ruling of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole"). Appellant's claim on appeal thus fails.
Next, Appellant claims that the trial court erred in refusing to suppress the breath alcohol concentration test result because Trooper Pifer did not "continuously observe" Appellant for the 20-minute time frame that is required by 67 Pa. Code § 77.24(a). The claim is meritless.
67 Pa. Code § 77.24 is entitled "breath test procedures." Section 77.24(a) provides:
(a) Observation. The person to be tested with breath test equipment shall be kept under observation by a police officer or certified breath test operator for at least 20 consecutive minutes immediately prior to administration of the first alcohol breath test given to the person, during which time the person may not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked. Custody of the person may be transferred to another officer or certified breath test operator during the 20 consecutive minutes or longer period as long as the person to be tested is under observation for at least 20 consecutive minutes prior to initial administration of the alcohol breath test.
67 Pa. Code § 77.24(a).
Appellant claims that Trooper Pifer did not "continuously observe" Appellant for requisite 20-minute time frame. The claim is belied by the record. Indeed, during the suppression hearing, Trooper Pifer specifically testified that he continuously observed Appellant from approximately 11:53 p.m. on May 10, 2012 until 12:37 a.m. on May 11, 2012 and that, during this entire time, Appellant did not: eat food, drink, vomit, consume anything, take anything into his mouth, belch, or burp. N.T. Suppression Hearing, 11/20/12, at 11 and 19. Again, while Appellant argues that the suppression court should not have believed Trooper Pifer's testimony, our standard of review requires that we "consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole." Eichinger, 915 A.2d at 1134. Appellant's claim fails.
For Appellant's third claim on appeal, Appellant contends that "[t]he trial court erred in admitting the [breath alcohol concentration test] results from the DataMaster DMT since the last accuracy inspection test for the DataMaster DMT was not completed 'within  days prior to using the breath test equipment to perform an actual breath test' per 67 Pa. Code § 77.25(a)." Appellant's Brief at 33. This claim is waived, as Appellant did not raise the issue before the trial court. Certainly, Appellant did not ground his pre-trial motion to suppress upon any such claim and the record does not reveal that Appellant ever objected to the admissibility of the breath alcohol concentration test results at trial. Therefore, the claim is waived. Pa.R.A.P. 302(a) ("[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal").
Finally, Appellant claims that the evidence was insufficient to sustain his conviction because the manufacturer of the DataMaster DMT ascribed a 0.009 range of error on an average device. Therefore, according to Appellant, "[i]f such a co-efficient of variation were afforded to Appellant, [his] .082% [breath alcohol concentration test result] . . . would only be a .073%, which would be insufficient to support a conviction [under 75 Pa.C.S.A. § 3802(a)(2)] as a matter of law." Appellant's Brief at 39. This claim fails because we have expressly held that "the coefficient of variation . . . implicates the weight, not the sufficiency of the evidence." Commonwealth v. Sibley, 972 A.2d 1218, 1219 (Pa.Super. 2009). Therefore, Appellant's sufficiency of the evidence claim necessarily fails.
Judgment of sentence affirmed.