Commonwealth v. Sloan

303 A.3d 155

COMMONWEALTH of Pennsylvania v. Terrance Lamont SLOAN, Appellant

No. 1483 WDA 2022

Superior Court of Pennsylvania.

Submitted July 31, 2023

Filed: September 21, 2023

James H. Robinson, Jr., Greensburg, appellant.

Nicole W. Ziccarelli, District Attorney, Greensburg, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E. ^*

OPINION BY STEVENS, P.J.E.:

Appellant Terrance Lamont Sloan appeals from the judgment of sentence entered in the Court of Common Pleas of Westmoreland County following his conviction at a non-jury bench trial on the charges of driving while under the influence of a controlled substance ("DUI")-impaired ability-first offense, possession of a controlled substance (marijuana), possession of drug paraphernalia, exceeding the maximum speed limit by 33 mph, and careless driving. ¹ After a careful review, we affirm.

The relevant facts and procedural history are as follows: Appellant was arrested and charged with various drug and traffic offenses, including DUI. Appellant filed a counseled pre-trial omnibus motion seeking to suppress the statements made by Appellant, as well as the evidence seized by the police, stemming from the stop of his motor vehicle on August 1, 2021. On May 9, 2022, Appellant, represented by counsel, proceeded to an evidentiary hearing on his motion to suppress.

At the suppression hearing, Pennsylvania State Police Trooper Stephen Rowe testified he was on routine patrol on August 1, 2021, and traveling on Route 22 in Salem Township in a marked police vehicle with his supervisor, Corporal Rebecca Fabich. N.T., 5/9/22, at 15-17. At approximately 3:06 a.m., he began following a vehicle and, clocking its speed for half a mile, he determined the vehicle was traveling at a "high rate of speed." Id. at 17. Specifically, he clocked the vehicle as traveling 78 miles per hour in an area properly posted at 45 miles per hour. ² Id. at 18. The trooper testified the police vehicle's speedometer had been issued a certificate of accuracy on May 10, 2021, by Rabold Services. ³ Id. at 19-20. The trooper testified the speedometer was calibrated as a speed timing device within three months prior to the time of the instant motor vehicle stop. Id. at 22.

Trooper Rowe testified that, due to the speeding violation, he initiated a stop of the vehicle. Id. He noted the driver, later identified as Appellant, initially stopped the vehicle "against the cement barrier in the median between the eastbound and westbound lanes with part of the vehicle being on the roadway" as opposed to pulling over to the right side of the road and stopping on the berm "where there was adequate room for everybody's safety." Id. at 22-23. Accordingly, the trooper exited his vehicle and, projecting his voice, asked Appellant to move his vehicle to a safer location, i.e. , a side road that connected to Route 22. Id. at 24. Trooper Rowe testified Appellant complied although he stopped the vehicle more in the "middle" of the side road instead of on the berm of the side road. Id. The trooper testified that Appellant's vehicle was now "off the main part of the state highway[,]" and he stopped the police vehicle, which had its overhead lights activated, directly behind Appellant's vehicle. Id. at 24-25.

Trooper Rowe testified that, at this point, he exited the police vehicle and approached Appellant's vehicle, which had its driver's side window rolled down. Id. at 25. As he did so, he "noticed the odor of burnt marijuana emanating from within the vehicle." Id. He noticed the burnt marijuana smell grew stronger as he walked closer to Appellant's vehicle. Id. at 26. Upon arriving at the driver's side window of Appellant's vehicle, Trooper Rowe identified himself, as well as requested Appellant's driver's license, registration, and proof of insurance as "he normally does in every traffic stop." Id. at 25.

As the trooper interacted with Appellant, and Appellant searched for his documents, the trooper noticed Appellant had "redness of his eyes, bloodshot teary eyes, glossy eyes. When [Appellant] spoke with [the trooper,] it was in a slurred speech. Very slow but slurred." Id. at 26. The trooper recognized these as signs of possible intoxication from a controlled substance. Id. at 27. Appellant provided his license and registration to the trooper, but he was unable to locate his proof of insurance. Id. at 26.

Trooper Rowe testified that, as soon as he received Appellant's license and registration, he asked Appellant, who was alone in the vehicle, "where the marijuana was." Id. at 27. Appellant "referenced on the passenger seat, and [it] was a metal tin sitting on top of the seat. [Appellant] then opened up the tin which exposed a marijuana blunt." Id. The trooper noted Appellant opened the tin without the trooper asking him to do so, and as Appellant did so, Appellant stated, "I have my card, and I am permitted to take my medication[.]" Id. Appellant volunteered he "smoked 2 hours previous to the incident and that his doctor informed him that he had to wait at least an hour before he could drive after taking his medication." Id. at 33.

Trooper Rowe testified he understood Appellant to be referring to the fact he had a medical marijuana card. Id. at 27. However, the trooper testified the packaging of Appellant's marijuana in the tin was not consistent with how medical marijuana is packaged. Id. at 28. He also noted Appellant's marijuana was in a "smoked blunt" form, which is not consistent with how medical marijuana is typically dispensed. ⁴ Id.

Trooper Rowe testified that, at this point, he asked Appellant to exit his vehicle to perform field sobriety tests. Id. at 29. He noted Appellant agreed, but his attitude became "more belligerent." Id. Appellant stood in front of and with his back to the police vehicle so that the area was well lit, but the lights were not in Appellant's eyes. Id. Trooper Rowe testified he began the field sobriety tests by holding a pen in front of Appellant, asking him if he could see the tip of the pen, and then asking Appellant to touch the tip of the pen with his right index finger. Id. at 30. Although Appellant indicated he could see the tip of the pen, he "touched his nose instead of the tip of the pen." Id.

Trooper Rowe indicated he explained and administered the "Lack of Convergence" test on Appellant, but Appellant's eyes "were unable to converge or, in other words, unable to cross when following the pen as instructed to do so." Id. at 30-31. The trooper indicated this was a sign that Appellant was under the influence of a controlled substance. Id. at 31. He next asked Appellant to "pull down on his lower eyelids," and the trooper observed "redness of his conjunctiva." Id. at 32. The trooper testified the sign of redness was an indicator Appellant was under the influence of a controlled substance. Id. He also noted he asked Appellant to stick out his tongue, and when he complied, Appellant's tongue had "a green, chalky substance over three quarters of the length and width of his tongue." Id. Based on his training, Trooper Rowe recognized this as an indication that Appellant "had smoked marijuana within the last four hours, but based on [the trooper's] observations and the amount of coverage on the tongue, it would have to be within the last hour or two." Id. at 32-33.

Trooper Rowe testified he then administered the Romberg Balance Test, which involved asking Appellant to close his eyes, tilt his head back, silently count to thirty, level his head, open his eyes, and tell the officer to stop counting in that time frame. Id. at 34. The trooper indicated he explained and demonstrated the test for Appellant. Id. Appellant indicated he understood the test and provided no reason as to why he would be unable to comply. Id. Nevertheless, Trooper Rowe testified that, during the test, Appellant had "tremors of his eyelids when they were closed and of his legs. He was also observed to have a 1 to 2 inch front-to-back sway and a 1 to 2 inch—or approximately 1 to 2 inch side-to-side sway." Id. He also noted that, instead of 30 seconds passing, 45 seconds passed before Appellant told the officer to stop the test. Id.

Concluding Appellant had failed the field sobriety tests, Trooper Rowe placed Appellant in the rear of the marked patrol vehicle, and he read Appellant his implied consent and O'Connell warnings. Id. Trooper Rowe confirmed that, despite going over the implied consent form and O'Connell warnings with Appellant, Appellant verbally refused to give consent for any chemical testing, and he refused to sign the forms. Id. at 36. Trooper Rowe noted he removed the metal tin, which contained the marijuana blunt, from Appellant's vehicle. Id. at 37-38. He opined the metal tin was drug paraphernalia given that it was not a type of packaging used by a medical marijuana dispensary or otherwise from a licensed medical professional. Id. at 38.

Trooper Rowe testified that, based on his observations, training, and experience, Appellant was under the influence of a controlled substance when he was operating his vehicle. Id. at 39. He summarized the basis for his opinion as follows:

Based on my personal observations, the odor of marijuana or burnt marijuana as I approached the vehicle, that same odor emanating from within the vehicle that [Appellant] was in, that same odor emanating from [Appellant's] person and breath after he exited the vehicle and while he was performing the field sobriety tests, the observations that I made of him to consist of the bloodshot glossy eyes, the slurred speech, the redness of the conjunctiva, again if I mentioned, the chalky substance on his tongue...It was my opinion that he was not capable of safe driving at this point.

Id. at 39-40.

On cross-examination, Trooper Rowe testified that, when he was following Appellant's vehicle, he saw no indication that Appellant's vehicle was "swerving" or "failing to maintain a lane[.]" Id. at 45. How...