Commonwealth v. Verbeck

COMMONWEALTH OF PENNSYLVANIA v. STEVEN LEONARD VERBECK Appellant

J-S34040-20

No. 1947 MDA 2019

SUPERIOR COURT OF PENNSYLVANIA

APRIL 9, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered November 1, 2019

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0002013-2018

BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:

Steven Leonard Verbeck appeals from the November 1, 2019 judgment of sentence entered by the Court of Common Pleas of Centre County, which followed his non-jury trial conviction of four separate counts of driving under the influence ("DUI") - controlled substance, one count of possession of a small amount of marijuana, DUI - general impairment, possession of drug paraphernalia, failing to yield right, driving on roadways laned for traffic, careless driving, and failure to use a safety belt.¹ The court sentenced Verbeck to five years of intermediate punishment, with 120 days to be served on in-home detention. After thorough review, we vacate Verbeck's judgment of sentence pursuant to Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super.2020), and remand for resentencing, but affirm as to all other issues raised on appeal.

In summary, while on vehicle patrol, two Pennsylvania State Police troopers observed two vehicles being driven in the opposite direction. The two troopers noticed that Verbeck's vehicle, the second of the two, entered their lane of travel by crossing well over the double-yellow line. As Verbeck's vehicle approached and then passed the troopers' vehicle, it straddled the double-yellow line.

Immediately thereafter, the troopers performed a U-turn and pursued Verbeck's vehicle. The troopers then initiated their emergency lights, which resulted in a traffic stop of Verbeck's vehicle. During the stop, the troopers smelled both marijuana and alcohol emanating both from Verbeck's vehicle and Verbeck, himself. Ultimately, Verbeck failed the standardized field sobriety tests he was asked to perform, tested positive for alcohol via a portable breathalyzer, and marijuana, among other items, was found in Verbeck's vehicle.

Verbeck was then taken into custody. Verbeck was transported first to the hospital for a blood draw and then to the county jail for fingerprinting. Prior to the blood draw, the troopers apprised Verbeck, verbatim, of the language contained in Form DL-26B and indicated that it was Verbeck's decision whether to consent to a blood draw. Verbeck verbally consented to a blood draw and signed Form DL-26B.

Verbeck filed a motion to suppress, which was denied by the suppressioncourt. Following a non-jury trial, the court convicted Verbeck of the offenses specified above. After sentencing, Verbeck filed a timely appeal. Both Verbeck and the trial court have complied with the dictates of Pa.R.A.P. 1925.

On appeal, Verbeck challenges:

1. Whether the arresting officer had probable cause to effectuate a traffic stop.

2. Whether Verbeck's consent to having his blood drawn was unknowing, unintelligent, and involuntary.

3. Whether the sentencing court erroneously treated Verbeck's prior acceptance of the Accelerated Rehabilitative Disposition ("ARD") Program as a prior offense for sentencing purposes.

See Appellant's Brief, at 14; Appellant's Supplemental Brief, at 4.

Verbeck's first two issues inherently deal with the denial of his motion to suppress, as relief on either claim would eliminate much, if not all, of the evidence employed against him at his non-jury trial. Verbeck asserts that the state troopers did not have probable cause to stop his vehicle and also avers that he did not voluntarily submit to the blood draw taken at the police station.

Our Court's standard of review for a suppression issue is deferential to the suppression court's findings of fact, but not its conclusions of law:

[We are] limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth 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 suppression court's factual findings are supported by the record, the appellate court is bound by those findings and may reverse only if the court's legal conclusions are erroneous. Where ... the appeal ofthe determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (internal citations omitted).

Preliminarily, we note the thorough and responsive nature of the suppression court's opinion. More specifically, the suppression court laid out, at length, its findings of fact. See Suppression Court Opinion, 6/25/19, at 2-5. Those factual determinations included an implicit belief in the troopers' testimonies as they described the events on the day Verbeck was arrested, which is reflected in the suppression court's ultimate conclusion that the troopers had probable cause to effectuate a vehicle stop. See id., at 10.

The troopers believed that Verbeck had violated two provisions of Pennsylvania's Motor Vehicle Code: 75 Pa. C.S.A. § 3302 (oncoming vehicles must yield to the right when passing) and 75 Pa. C.S.A. § 3309(1) (maintaining vehicle within one lane). The suppression court found the troopers' testimonies credible when they indicated that Verbeck's vehicle had crossed the double-yellow line and entered into the troopers' lane of travel. See Suppression Court Opinion, 6/25/19, at 9-10.

To controvert the troopers' testimonies, however, Verbeck asserts that the dashcam video recorder affixed to the troopers' vehicle refutes the testimonial evidence presented. In fact, Verbeck believes "the video evidence wholly contradicts Trooper Trate and Trooper Ammerman's testimony about[his] driving, and therefore should be disregarded or, at minimum, be afforded significantly diminished weight." Appellant's Brief, at 27. Verbeck goes on to describe the video recording as "unambiguous." Id., at 28.

After an independent and intensive review of the recording, we find no objectively determinative dissimilarities between the troopers' testimonies and the events as depicted on video. At most, given the grainy and nighttime nature of the footage and the fact that the video shows two separate oncoming vehicles, the recording is inconclusive on whether Verbeck's vehicle entered into the troopers' lane. However, what can be discerned is that consistent with the troopers' testimonies, Verbeck's vehicle travels along the double-yellow line as his vehicle passes. See Dash Camera Recording; Suppression Hearing N.T., 3/25/19, at 22, 43-44.

As such, we are left with a record that does not contradict the suppression court's factual findings. We, as an appellate court, cannot upset the credibility determinations of the suppression court, "within whose sole province it is to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Poplawski, 130 A.3d 697, 711 (Pa. 2015). Based on the troopers' testimonies, which both reflected that Verbeck's vehicle entered into their opposing lane of travel, we agree that they had probable cause to stop Verbeck's vehicle based on at least one violation of Pennsylvania's Motor Vehicle Code.

Moreover, while Verbeck argues in the alternative that any purported vehicular violation was "minor and momentary," Appellant's Brief, at 29, thetroopers' unambiguous testimony that Verbeck's vehicle crossed the double-yellow line in close proximity to the troopers' vehicle passing in the opposite direction establishes a clear and significant safety hazard on the roadway. Instead of conclusory statements that their probable cause was derived from several Motor Vehicle Code violations without further elucidation, the troopers were able to articulate specific facts known to them prior to the stop of Verbeck's vehicle, such as both troopers indicating that Verbeck's vehicle entered approximately half a car length into the troopers' lane of travel.² See Suppression Hearing N.T., 3/25/19, at 8, 43.

Accordingly, given the existence of probable cause, the traffic stop of Verbeck's vehicle was legal, and he is due no relief on this issue.

As to Verbeck's claims that his consent to a blood draw was not knowing, intelligent, and voluntary and that, as an ancillary matter, the restoration fee provision in Form DL-26B is a violation of the United States Supreme Court's holding in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (establishing that motorists may refuse to submit to warrantless blood tests, but that they could still face civil, rather than criminal, penalties if refused), they, too, are unavailing.

Given that we find no fault with the suppression court's well-reasoned analysis, detailing all six factors considered in adjudicating whether someone has given knowing consent, we adopt its relevant discussion as our own and affirm on that basis. See Suppression Court Opinion, 6/25/19, at 11-15. Notably, we emphasize that Verbeck was adequately apprised, both verbally and in writing, of his right not to submit to a warrantless blood draw. While Verbeck was in custody throughout the blood draw experience, a factor that can cut against consent, the balance of the other remaining factors, such as Verbeck's general cooperation to the proceedings as well as there being no indication Verbeck has any limiting intellectual disabilities clearly weigh in the opposite direction. Although Verbeck asserts he was...