Com. v. Verbeck, S. (memorandum)

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J. S34040/20 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. STEVEN LEONARD VERBECK, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1947 MDA 2019 Appeal from the Judgment of Sentence Entered November 1, 2019, in the Court of Common Pleas of Centre County Criminal Division at No. CP-14-CR-0002013-2018 BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 10, 2020 Steven Leonard Verbeck appeals from the November 1, 2019 judgment of sentence of five years of intermediate punishment, with 120 days to be served on in-home detention, entered by the Court of Common Pleas of Centre County, following his conviction of four counts of driving under the influence (“DUI”) — controlled substance,1 and one count each of possession of a small amount of marijuana,2 DUI — general impairment,3 possession of drug 1 75 Pa.C.S.A. §§ 3802(d)(1)(i), (iii), (2), and (3). 2 35 P.S. § 780-113(a)(31)(i). 3 75 Pa.C.S.A. § 3802(a)(1). J. S34040/20 paraphernalia,4 failing to yield right,5 driving on roadways laned for traffic,6 careless driving,7 and failure to use a safety belt.8 After careful review, we affirm and deny appellant’s motion to file a supplemental brief as moot. The suppression court and the trial court set forth the following factual and procedural history: 1. On the morning of September 27, 2018, Pennsylvania State Police Troopers Kyle Trate and Ty Ammerman were on patrol on Halfmoon Valley Road in Halfmoon Township. Halfmoon Valley Road is a two-lane road with a double-yellow line running through the middle. 2. Trooper Ammerman was driving and Trooper Trate was in the front passenger seat of the patrol vehicle. The [t]roopers were driving “a little slower than normal driving speed” because they were searching for an injured deer that had reportedly been struck by a vehicle. Trooper Ammerman was operating spotlights in search of the deer. 3. At some point, the [t]roopers encountered two vehicles approaching from the opposite lane of travel. Trooper Ammerman turned off the spotlights. 4. Trooper Trate testified he observed that the second vehicle “had crossed over the double-yellow line into our lane.” Trooper Trate 4 35 P.S. § 780-113(a)(32). 5 75 Pa.C.S.A. § 3302. 6 75 Pa.C.S.A. § 3309(1). 7 75 Pa.C.S.A. § 3714. 8 75 Pa.C.S.A. § 4581(a)(2)(ii). -2- J. S34040/20 further stated that the second vehicle had “crossed over probably right around half a vehicle length into our lane.” 5. [Appellant’s] vehicle was approximately fifty feet away when Trooper Trate observed it traveling in the [t]roopers’ lane of travel. Trooper Trate opined that the second vehicle’s presence in their lane of travel created a risk of collision. 6. Trooper Ammerman similarly testified he observed that the second vehicle “had crossed . . . at least a half a car length across the double-yellow line.” Trooper Ammerman estimated [appellant’s] vehicle was several hundred feet away when he observed it traveling in the [t]roopers’ lane of travel, although he was not certain of the distance. Trooper Ammerman also opined that the second vehicle’s presence in the [t]roopers’ lane of travel created a safety hazard. 7. Both [t]roopers testified that [appellant’s] vehicle was on the double-yellow center line as it approached the [t]roopers’ vehicle. 8. The [t]roopers made a u-turn and pursued the second vehicle. After they caught up to the second vehicle, the [t]roopers activated their emergency lights in order to conduct a traffic stop of the vehicle. 9. After the vehicle came to a stop, Trooper Trate approached the vehicle on the passenger side and knocked on the front window. The driver, who was later identified as [appellant], partially rolled down the window. 10. Because he could not communicate clearly with [appellant], Trooper Trate requested that [appellant] roll the window down all the way. -3- J. S34040/20 11. Trooper Trate testified he immediately detected the odor of marijuana and a faint odor of alcoholic beverage emanating from within [appellant’s] vehicle. On being asked, [appellant] denied possessing any marijuana or having consumed any alcohol. 12. Trooper Trate asked [appellant] to produce his driver’s license and the vehicle’s registration and insurance information. 13. [Appellant] opened his passenger side glove box while searching for his registration and insurance documents. Trooper Trate observed a firearm in the glove box. 14. Upon observing the firearm, Trooper Trate made a visual inspection of other parts of the vehicle to ensure there were no other weapons inside. He observed rolling papers in the center console of the vehicle. 15. Based on the odor of marijuana and the presence of rolling papers, Trooper Trate suspected there was marijuana in the vehicle. 16. Trooper Trate questioned [appellant] on the purpose of the rolling papers, and he answered that the rolling papers were for smoking cigarettes. He further stated his tobacco was at home. 17. [Appellant] was informed that he was stopped for crossing into the [t]roopers’ lane of travel. 18. Because [appellant] had a firearm in the car, Trooper Trate asked him to step outside the vehicle in order to keep him separated from the firearm. 19. Trooper Trate spoke to [appellant] outside the vehicle and smelled a strong odor of alcoholic beverages coming from [appellant’s] person. Based on [appellant’s] driving and his speech, -4- J. S34040/20 which was slurred, Trooper Trate asked [appellant] to submit to standardized field sobriety testing, and [appellant] consented. 20. [Appellant] performed and failed the standardized field sobriety tests. A portable breath test was administered and was positive for alcohol. The [t]roopers placed [appellant] into custody for suspected DUI. 21. Trooper Trate searched [appellant’s] person. He located vapor oil and a vape pen in his pocket. [Appellant] stated the oil was CBD. 22. Based on [appellant’s] admission that he had CBD oil, the odor of marijuana that Trooper Trate smelled emanating from the car, and the rolling papers he had observed in [appellant’s] vehicle, Trooper Trate believed he had probable cause to search the vehicle. 23. Trooper Trate searched [appellant’s] car and located a substance he believed was marijuana in the center console area. Subsequent testing confirmed the substance was marijuana. 24. After taking [appellant] into custody, the [t]roopers placed him in their patrol vehicle and headed to Mount Nittany Medical Center (“Hospital”) for blood testing. 25. Trooper Trate testified that after taking a DUI suspect into custody, he advises the suspect that standard procedure is to go to the Hospital and ask for a blood draw. 26. Trooper Trate also informs DUI suspects that they will have to be fingerprinted, which takes place at the Centre County jail. 27. Trooper Trate spoke to [appellant] about arrangements for [appellant] to be picked up that night at the Centre County jail after fingerprinting. -5- J. S34040/20 28. Trooper Trate could not recall the specific conversation he had with [appellant]. He acknowledged it was possible he informed [appellant] if he was refusing a blood draw they would go straight to fingerprinting. 29. Regardless of whether [appellant] consented to a blood draw, the [t]roopers planned to take him to the Centre County jail for fingerprinting. 30. [Appellant] did not indicate he would not consent to a blood draw, so the [t]roopers took him to the Hospital. 31. At the Hospital, Trooper Trate informed [appellant] the decision of whether or not to consent to a blood draw was for [him] to make, and that Trooper Trate could not give him advice on what to do. 32. Trooper Trate read the applicable portions of Form DL-26, verbatim, to [appellant]. 33. [Appellant] also read the Form DL-26. 34. [Appellant] testified he had no difficulty reading the Form DL-26, and he had a clear head on the evening of his arrest. 35. [Appellant] testified he was never advised he would be taken for fingerprinting. 36. Trooper Trate testified that [appellant] verbally consented to a blood draw and also signed Form DL-26. 37. [Appellant] testified he “guesstimated” he consented because of fear of the situation and especially a possible “fine,” i.e., the driver’s license restoration fee described in the Form DL-26. -6- J. S34040/20 38. [Appellant] was taken for fingerprinting at the Centre County jail after his blood draw was completed. Suppression court opinion, 6/25/19 at 2-5 (transcript citations omitted). On June 25, 2019, the suppression court denied appellant’s motion to suppress. On September 6, 2019, following a stipulated non-jury trial, the court convicted appellant of the aforementioned offenses. On November 1, 2019, the trial court sentenced appellant as delineated above. The instant, timely appeal followed. Subsequently, in response to the trial court’s order, appellant filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 22, 2020, the trial court issued an opinion.9 On appeal, appellant raises the following questions for our review: I. Whether the [s]uppression [c]ourt erred in denying [a]ppellant’s motion to suppress all evidence and [sic] fruit of the poisonous tree obtained from the traffic stop at issue since the arresting officer did not have the requisite probable cause to believe that [a]ppellant had committed any violations of the Motor Vehicle Code or any laws of this Commonwealth? II. Whether the [t]rial [c]ourt erred in denying [a]ppellant’s motion to suppress evidence obtained by a warrantless blood draw since: (1) the arresting officer threatened that [a]ppellant could either submit to a blood draw or go to jail, and (2) [a]ppellant was threatened with a $2,000.00 enhanced criminal punishment disguised as a license restoration fee if he In its opinion, the trial court adopted the suppression court’s opinion concerning the suppression issues and only addressed the sufficiency of the evidence claims raised by appellant in his Rule 1925(b) statement. Appellant has abandoned these sufficiency claims on appeal. 9 -7- J. S34040/20 refused to submit to a warrantless blood draw, which individually and collectively rendered any purported consent given by [a]ppellant to be unknowing, unintelligent, and involuntarily [sic]? Appellant’s brief at 14. In both issues on appeal, appellant challenges the denial of his motion to suppress. Appellant first claims the suppression court erred in concluding the state troopers had probable cause to stop his vehicle. (Appellant’s brief at 23-34.) He next claims the suppression court erred in concluding he “knowingly, intelligently, and voluntarily” submitted to a blood draw. (Id. at 14; see id. at 35-45.) Our standard of review for challenges to the denial of a suppression motion: is 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, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. Where . . . . the appeal of the 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 our plenary review. -8- J. S34040/20 Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012) (citations omitted), appeal denied, 65 A.3d 413 (Pa. 2013) (parallel citation omitted). With these principles in mind, we note the suppression court authored a comprehensive and well-reasoned opinion, which properly addresses and disposes of appellant’s two claims.10 Specifically, the court found the testimony of the two state troopers was credible and believed their version of the events. (Suppression court opinion, 6/25/19 at 10, 14.) We are bound by those credibility findings. Commonwealth v. George, 878 A.2d 881, 883 (Pa.Super. 2005), appeal denied, 891 A.2d 730 (Pa. 2005) (parallel citation omitted). Moreover, the suppression court viewed the mobile video recording (“MVR”) of the incident and determined it supported the troopers’ testimony.11 On appeal, appellant abandoned the claim raised in his motion to suppress the search of his motor vehicle was unconstitutional. 10 On appeal, appellant challenges the trial court’s finding the MVR supported the troopers’ testimony. (Appellant’s brief at 26-27.) We are unable to review this claim because, while the videos are contained within the certified record, they are not in a format this court is able to access. It is the appellant’s responsibility to make certain the certified record contains all items necessary, and in a reviewable format, to ensure this court is able to assess his claims. See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa.Super. 2008) (en banc). This [c]ourt has stated: 11 It is black letter law in this jurisdiction that an appellate court cannot consider anything which is not part of the record in the case. It is also well-settled in this jurisdiction that it is [a]ppellant’s responsibility to supply this [c]ourt with a complete record for -9- J. S34040/20 (Suppression court opinion, 6/25/19 at at 10.) We further agree with the court, based upon their testimony and the MVR, the troopers had probable cause to stop appellant’s vehicle. (Id. at 9-10.) Additionally, we agree with the suppression court’s finding that appellant’s claims his consent to the blood draw was not knowing, intelligent, and voluntary and the restoration fee provision in Form DL-26 was a threat of an enhanced criminal penalty lack merit. (Id. at 11-15.) Accordingly, we adopt the pertinent portions of the suppression court’s well-reasoned June 25, 2019 opinion as our own and affirm on that basis. Judgment of sentence affirmed. Motion to file a supplemental brief denied. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/10/2020 purposes of review. A failure by appellant to insure that the original record certified for appeal contains sufficient information to conduct a proper review constitutes waiver of the issue sought to be examined. Commonwealth v. Martz, 926 A.2d 514, 524-525 (Pa.Super. 2007) (citations and quotation marks omitted). Because appellant failed to ensure the certified record contained the MVR in a format which could be viewed by this court, he waived any challenge to the trial court’s interpretation of it. - 10 - Circulated 11/10/2020 03:02 PM

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