Commonwealth v. Fudge

213 A.3d 321

COMMONWEALTH of Pennsylvania

v.Dolphus Otis FUDGE, Appellant

No. 643 MDA 2018

Superior Court of Pennsylvania.

Submitted December 17, 2018

Filed June 20, 2019

Alexandria J. Lappas, Carlisle, for appellant.

Courtney E. Hair Larue, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

BEFORE: STABILE, J., DUBOW, J., and STEVENS^* , P.J.E.

OPINION BY DUBOW, J.:

Appellant, Dolphus Otis Fudge, appeals from the Judgment of Sentence of 54 to 108 months of incarceration, imposed on April 10, 2018, following a trial resulting in his conviction for Firearms Not to be Carried Without a License, Possession of a Controlled Substance (methamphetamine), Possession of Drug Paraphernalia, Driving Under the Influence—Controlled Substance (DUI), and several summary violations of the Motor Vehicle Code.¹ We vacate the Judgment of Sentence as to the charge of DUI and remand. We affirm in all other respects.

We derive the following statement of facts from the trial court's Opinion, which is supported by the certified record. See Trial Ct. Pa.R.A.P. 1925(a) Op., dated 8/13/18, at 2-4.

In the evening of June 27, 2017, Pennsylvania State Trooper Dabrowski, observed a commercial tractor trailer driving unlawfully in the left lane of Interstate 81 in Cumberland County.² Following this commercial vehicle, Trooper Dabrowski followed the vehicle and clocked it traveling at seventy-five miles per hour in a posted sixty-five miles-per-hour zone. He further observed the vehicle swerve in front of and nearly strike a pickup truck driving in the middle lane. Trooper Dabrowski activated his emergency lights and initiated a traffic stop of the tractor trailer.

As he approached the vehicle, which was occupied by Appellant and a female passenger, the trooper smelled burnt marijuana emanating from the cab. At Trooper Dabrowski's request, he and Appellant conversed outside the cab.

Appellant suggested that his passenger had been smoking marijuana. However, Trooper Dabrowski observed that Appellant's pupils were dilated and did not constrict when light hit them. In addition, he observed that Appellant continuously ground his teeth. Based on these observations, Trooper Dabrowski believed that Appellant was under the influence of some kind of stimulant.

Appellant agreed to submit to field sobriety testing. As a result of this testing, Trooper Dabrowski noted that Appellant had a "sped-up body clock and eyelid tremors." Id. at 3.³ Trooper Dabrowski concluded that Appellant was operating the tractor trailer while under the influence of marijuana and/or some other stimulant and placed Appellant under arrest.

Trooper Dabrowski requested backup, including a K-9 unit, to assist in his warrantless search of the tractor trailer. Trooper Dabrowski and a canine handler subsequently searched the cab and found a loaded 9mm handgun, a separate magazine for the firearm, marijuana, methamphetamine, and various items of drug paraphernalia. Thus, in addition to a charge of DUI, Appellant incurred charges related to the drugs and firearm.

Thereafter, Appellant filed a Motion to Suppress seeking, inter alia , the suppression of physical evidence seized from the cab of the tractor trailer. See Omnibus Motion, 9/22/17, at 2-3 (unpaginated). According to Appellant, police lacked probable cause to conduct a warrantless search of the cab. Id. Following a hearing, the lower court denied Appellant's Motion to Suppress. Suppression Ct. Order, 1/25/18.⁴

In March 2018, a jury trial commenced. At the close of testimony, the court instructed the jury on all offenses, including the DUI.⁵ Following deliberations, the jury convicted Appellant of Firearms Not to be Carried Without a License, Possession of a Controlled Substance (methamphetamine), and Possession of Drug Paraphernalia (glass pipes associated with smoking methamphetamine). N.T. Trial, 3/20/18, at 155-56.

However, the jury informed the court that it was unable to reach a unanimous verdict on the DUI charge. Id. at 156-57. The trial court instructed the jury to leave its verdict sheet blank for that charge. Over Appellant's objection, the court then sua sponte entered a verdict of guilty for DUI and the summary traffic violations. Id. at 154-55.

Following a presentence investigation, the court imposed a sentence as indicated above, in addition to various costs and fines. Appellant did not file a post-sentence motion but timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement. The trial court issued a responsive Opinion.

Appellant raises the following issues on appeal:

[1.] [Whether] the [suppression] [c]ourt erred in denying [Appellant's] [M]otion to suppress[ ] physical evidence, where the only evidence to support the constitutionality of the search was the testimony of an officer who made numerous material false statements of fact during the suppression hearing[;]

[2.] [Whether] the [t]rial [c]ourt committed an abuse of discretion in allowing Trooper Dabrowski to provide expert opinion about the circumstances under which fingerprints can and cannot be found on items of physical evidence[;]

[3.] [Whether] the [t]rial [c]ourt committed an abuse of discretion in entering a guilty verdict on the charge of driving under the influence after that count had been charged to the [j]ury and the [j]ury indicated that it had hung on that count [; and]

[4.] [Whether] the [t]rial [c]ourt committed an abuse of discretion in allowing Trooper Dabrowski to provide expert opinion about whether [Appellant] was under the influence of a controlled substance so as to render him incapable of safe driving.

Appellant's Br. at 6 (issues reordered for ease of analysis).

Suppression of Physical Evidence

In his first issue, Appellant asserts the suppression court erred in denying his Motion to Suppress the contraband seized from the cab of his tractor trailer. Id. at 13. His argument focuses solely on the credibility of Trooper Dabrowski's testimony. Id. at 15-19. According to Appellant, the court abused its discretion when it credited this testimony despite several materially false statements contained therein. Id. at 20.

In reviewing the denial of a motion to suppress, we are limited to considering only the Commonwealth's evidence and "so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole." Commonwealth v. McCoy , 154 A.3d 813, 815-16 (Pa. Super. 2017). Further, "[t]he scope of review from a suppression ruling is limited to the evidentiary record created at the suppression hearing." Commonwealth v. Neal , 151 A.3d 1068, 1071 (Pa. Super. 2016) (citing In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1087 (2013) ).

Where the testimony and other evidence supports the suppression court's findings of fact, we are bound by them and "may reverse only if the court erred in reaching its legal conclusions based upon the facts." McCoy , 154 A.3d at 816. It is within the exclusive province of the suppression court to "pass on the credibility of witnesses and determine the weight to be given to their testimony." Id. This Court will not disturb a suppression court's credibility determination absent a clear and manifest error.

Commonwealth v. Cama cho , 425 Pa.Super. 567, 625 A.2d 1242, 1245 (1993).

Here, Appellant asserts that Trooper Dabrowski did not testify truthfully at the suppression hearing. For example, Appellant points to direct testimony by the trooper, indicating that no search of the vehicle occurred before the arrival of the K-9 unit and that he did not search the vehicle until the canine alerted him to the presence of drugs. Appellant's Br. at 15-16 (quoting N.T. Suppression at 8-11). However, Trooper Dabrowski conceded on cross-examination that he and the K-9 handler first conducted a protective sweep of the cab to ensure the canine's safety. Id. at 16-17 (quoting N.T. Suppression at 21-22). As a result of this initial sweep, the police discovered the contraband. Further, Appellant introduced video evidence confirming that Trooper Dabrowski searched the cab and seized contraband without the assistance of the canine. Id.

Because Trooper Dabrowski gave demonstrably false testimony, Appellant suggests the suppression court should have rejected his testimony in its entirety. We disagree. As noted by the suppression court, the discrepancies in Trooper Dabrowski's testimony were not material, "inasmuch as the validity of the search depended upon the existence of probable cause [that Appellant had committed a crime] and not on the instrumentality by which it was conducted." Suppression Ct. Op. at 9. Thus, we will not disturb the court's credibility determination. Camacho , 625 A.2d at 1245 ; see also Commonwealth v. Ieradi , 216 Pa. 87, 64 A. 889, 889 (1906) (noting that the principle, "falsus in uno , falsus in omnibus ," i.e. , "false in one, false in all," permits but does not require a fact finder to reject the testimony of a witness who "willfully and corruptly swears falsely to any material fact in a case").

With respect to a warrantless search of a vehicle, Pennsylvania's law is "coextensive" with federal law under the Fourth Amendment of the U.S. Constitution. Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102, 120 (2014) (OAJC). In Gary , a plurality of our Supreme Court held that "[t]he prerequisite for a warrantless search of a motor vehicle is probable cause to search; no exigency beyond the inherent mobility of a motor vehicle is required." Id. at 138. Thus, the material issue before the suppression court was whether Trooper Dabrowski had probable cause to search Appellant's vehicle.

Probable cause exists where the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution to believe that a defendant has or is committing an offense. Commonwealth v. Runyan , 160 A.3d 831, 837 (Pa. Super. 2017) (citation omitted). "The evidence required to establish probable cause for a warrantless search must be more than a mere suspicion or...