Commonwealth v. Sabol

1

COMMONWEALTH OF PENNSYLVANIA v. ANDREW MARK SABOL Appellant

No. 793 MDA 2023

No. J-S14024-24

Superior Court of Pennsylvania

July 2, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered May 3, 2023 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000686-2022.

Benjamin D. Kohler, Esq.

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.

MEMORANDUM

PANELLA, P.J.E.

Andrew Mark Sabol appeals from the judgment of sentence entered in the Luzerne County Court of Common Pleas on May 3, 2023 following his convictions for two counts of driving under the influence ("DUI") and a summary offense. We affirm.

On January 14, 2022, Sabol was charged by criminal information with DUI-general impairment, DUI-highest rate, and the summary offense of accidents involving damage to attended vehicle/property for an incident that occurred on December 15, 2021.

Sabol filed omnibus pretrial motions, including a petition for habeas corpus based on insufficient evidence, and motions to suppress evidence. The trial court subsequently granted the Commonwealth's motion to amend the information to change the charge for accidents involving damage to attended vehicle/property to accidents involving damage to unattended vehicle/property.

On July 11, 2022, the trial court held a hearing on Sabol's omnibus pretrial motions. After taking the matter under advisement, and considering briefs submitted by both parties, the court denied suppression. On March 16, 2023, the matter proceeded to trial.

The trial court summarized the factual and procedural history as follows:

Pertinent to the current appeal, the Commonwealth introduced evidence that during the early morning hours of December 15, 2021, while in his home near the intersection of Huntsville Road and Main Street in Dallas Borough, Joseph Hand heard a crash and then a scraping noise that sounded like a vehicle trying to move. When he went outside to investigate, Hand observed a damaged utility pole, debris and fluid on the road, and the taillights of a vehicle, which was making a scraping sound as it drove west on Huntsville Road. Shortly thereafter, Officer Jason Woodard, who was on duty monitoring traffic at a nearby five-way intersection, saw a red pickup truck with a low-hanging headlight travel through the intersection and continue west along Huntsville [R]oad. When [] Hand reported the crash, Officer William Norris responded and observed the debris (including pieces suggesting that the vehicle involved was red) and a trail of fluids leading away from the scene along Huntsville Road. When Officer Norris learned that Officer Woodard had observed a red pickup with front end damage traveling west along Huntsville Road, he went to area of the five-way intersection and observed a trail of fluid. As Officer Norris proceeded along Huntsville Road he observed fluid and more debris. The trail of fluid eventually led into the driveway of 1356 Huntsville Road, at the top of which Officer Norris observed a red pickup truck parked facing a garage.

A dusk-to-dawn light was on, but no other lights were lit in the garage or the adjacent house. When Officer Norris walked through the yard to the top of the driveway to investigate, he was startled to see [Sabol] sitting near the front passenger side of the truck with his back to the garage. Officer Norris asked [Sabol] if he was okay, and [Sabol] responded that he had hit his head on the windshield, but he declined medical attention. Officer Norris did not see anyone else near the truck. When conversing with [Sabol], Officer Norris observed that he smelled of alcohol, had slurred speech, was unsteady, and had glassy eyes. Officer Norris also observed that the truck had fresh front[-]end damage and was leaking fluid, and it was determined that only the driver's side airbag had deployed. Based on these observations, Officer Norris arrested [Sabol] on suspicion of driving under the influence. A breath test was administered at 3:12 a.m., showing a BAC of .241.

At the close of the Commonwealth's case, [Sabol] moved for judgment of acquittal, arguing with regard to all three Counts that the Commonwealth had failed to show that [Sabol] was driving. Following brief discussion, the [c]ourt denied the motion. Before the parties gave their closing arguments, they were provided with a written copy of the proposed jury instruction that would be read to the jury by the [c]ourt, regarding Count 2, and a copy of the proposed verdict slip for that charge. The parties agreed that both the instruction and the verdict slip were satisfactory to them.

Following closing arguments, the [c]ourt instructed the jury. When the instructions concluded, the parties indicated to the [c]ourt that they had nothing additional to offer, and the jury began its deliberations. The jury subsequently found [Sabol] guilty of Count 2, and the [c]ourt determined that [Sabol] was guilty of Counts 1 and 3.

On March 23, 2023, the Commonwealth filed a motion to amend the information in order to comply with docketing procedures used by the Luzerne County Clerk of Court, whereby asterisks are used to differentiate between 1^st, 2^nd, 3^rd, and 4^th or subsequent offenses. Although [Sabol] had not objected to the March 15, 2023 amendment of the information to reflect that both Counts 1 and 2 represented 2^nd offenses in light of [Sabol]'s prior DUI, he filed an answer to the Commonwealth's March 23rd motion, denying that he had a prior DUI conviction and denying that "this [c]ourt found [Sabol] guilty of second offense DUI because the Commonwealth failed to establish a record to support that finding." Additionally, despite agreeing to the proposed verdict slip and jury instruction, which placed the BAC information in the instruction but not on the verdict slip, [Sabol] denied that the jury found him guilty of DUI, highest rate because "the verdict slip did not reference BAC, a DUI tier, or a count on the information." [Sabol] further averred that "due to the form of the verdict slip the jury's verdict can only result in a conviction of DUI, Incapable of Safe Driving, 75 Pa.C.S. § 3802(a)(1). Specifically, the jury did not find beyond a reasonable doubt that [Sabol]'s BAC was .16% or higher or even above .10%."

The Commonwealth's March 23^rd motion and [Sabol]'s answer thereto were addressed on May 3, 2023, when the parties convened for [Sabol]'s sentencing hearing. The Commonwealth reiterated its request to change the single asterisks to double asterisks. [Sabol] indicated that he was "not fighting over asterisks." Thus, the [c]ourt ordered the information to be amended to change the single asterisks at Counts 1 and 2 to double asterisks.

Turning to [Sabol]'s sentencing, the [c]ourt entertained argument from the parties, including [Sabol]'s assertion that his prior DUI, which resulted in the ARD, should not be considered a conviction for sentencing purposes under Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020). Thereafter, with the benefit of a Pre-Sentence Investigation [Report] (PSI) that confirmed the prior DUI/ARD, the [c]ourt sentenced [Sabol] at Count 2 to 18 months in the Restrictive Probation Program, with the first 6 months under house arrest with electronic monitoring, plus a $ 1,500.00 fine; and a $ 300.00 fine plus costs at Count 3. [Count 1 merged with Count 2 for sentencing purposes.]

Trial Court Opinion, 9/1/23, at 2-5 (some citations omitted). This timely appeal followed.

Sabol raises the following issues on appeal:

A. Did the trial court err in denying the motion to suppress the fruit of the warrantless search of a residential property?

B. Did the trial court err in denying the motion for judgment of acquittal?

C. Did the trial court err in denying the motion to suppress the fruit of the illegal arrest?

D. Should Sabol be sentenced as a first time DUI offender?

Appellant's Brief, at 5.

In his first and third issues, Sabol challenges the trial court's denial of his motions to suppress.

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 conclusion drawn from those facts are correct. Since the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution 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 record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Russell, 938 A.2d 1082, 1090 (Pa. Super. 2007) (citation omitted).

In denying suppression, the trial court concluded as follows:

13. Officer Norris had probable cause to believe that crimes had been committed including Accidents Involving Damage to Unattended Vehicle or Property, 75 Pa.C.S.A. § 3745(a)[,] which he was investigating.

14. Officer Norris, upon observing the fluid trail leading to 1356 Huntsville Road, was at a lawful vantage point when he observed the red pick-up truck.

15. Officer Norris did not engage in any unlawful search or seizure by simply walking onto the property at 1356 Huntsville Road, as such area was an area where visitors or members of the public could be expected to go and there is no reasonable expectation of privacy in said driveway/walkway area.

16. The observations of the vehicle and [Sabol] at said time were observed in plain view by Officer Norris where he was at a lawful vantage point and their incriminating character was immediately apparent.

17. The arrest of [Sabol] was lawful as was the BAC testing of [Sa

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