Commonwealth v. Copenhaver

• Decision Date: 07 December 2018
• Docket Number: No. 383 MDA 2018,383 MDA 2018
• Citation: 200 A.3d 956
• Parties: COMMONWEALTH of Pennsylvania v. Victor Lee COPENHAVER, Appellant
• Court: Pennsylvania Superior Court

200 A.3d 956

COMMONWEALTH of Pennsylvania

v.Victor Lee COPENHAVER, Appellant

No. 383 MDA 2018

Superior Court of Pennsylvania.

Submitted October 29, 2018

Filed December 7, 2018

Sean A. Mott, Public Defender, Gettysburg, for appellant.

Daniel S. Topper, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.

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

OPINION BY MURRAY, J.:

Victor Lee Copenhaver (Appellant) appeals from the judgment of sentence imposed after the trial court convicted him of two counts of driving under the influence of alcohol and a controlled substance (DUI),¹ possession of a small amount of marijuana, and three summary offenses under the Vehicle Code. Upon review, we affirm.

On August 31, 2015, Adams County Deputy Sheriff Timothy Beall initiated a traffic stop of Appellant's vehicle because it had an expired registration. The trial court provided the following summary:

At trial, Sheriff Deputy Beall testified that after he stopped Appellant's vehicle, he asked Appellant to produce his license, registration, and insurance information. Appellant flailed his hands in the air and stated that he didn't have a license and was suspended. While speaking with Appellant, Sheriff Deputy Beall observed an odor of alcohol and marijuana emanating from the passenger compartment of the vehicle. Sheriff Beall noticed that Appellant had blood shot eyes and slurred speech. Sheriff Deputy Beall asked Appellant to exit the vehicle. Appellant complied and stated, "I have a bowl in my pocket." Sheriff Deputy Beall took the smoking device out of Appellant's pocket. In addition, Sheriff Deputy Beall recovered suspected marijuana from the glove box in Appellant's vehicle. Sheriff Deputy Beall advised Appellant that he was going to conduct Standard Field Sobriety Tests (SFSTs) and then led Appellant to a flat, well-light[ed] area. Appellant showed signs of impairment and stated that he could not complete the SFSTs. For Appellant's safety, Sheriff Deputy Beall concluded the SFSTs. Based on the totality of the circumstances, Sheriff Deputy Beall suspected that Appellant was under the influence of drugs, alcohol, or a combination of both. Sheriff Deputy Beall took Appellant into custody.

On July 12, 2017, after a bench trial, this Court found Appellant guilty of Driving Under the Influence of a Controlled Substance, as an ungraded misdemeanor (Count 3); Driving Under the Influence of Alcohol and a Controlled Substance, as an ungraded misdemeanor (Count 4); Possession of a Small Amount of Marijuana, as an ungraded misdemeanor (Count 5); Registration/Certification of Title, as a summary offense (Count 7); Driving Without a License, as a summary offense (Count 8); and Unauthorized Transfer or Use of Registration, as a summary offense (Count 9). On September 18, 2017, Appellant was sentenced on Count 4 to seventy-two (72) hours to six (6) months partial confinement at the Adams County Adult Correctional Complex. The Sentencing Court sentenced Appellant to pay fines on Counts 5, 7, 8 and 9.

Trial Court Opinion, 11/20/17, at 1-3 (footnotes omitted).

Appellant filed a post-sentence motion, one day late, on September 29, 2017. See Pa.R.Crim.P. 720 ("[A] written post-sentence motion shall be filed no later than 10 days after imposition of sentence"). On October 17, 2017, he filed an appeal in this Court at No. 1620 MDA 2017. On February 5, 2018, this Court erroneously quashed the appeal on the basis that Appellant's post-sentence motion was timely and therefore pending before the trial court. See Commonwealth v. Dreves , 839 A.2d 1122 (Pa. Super. 2003) (en banc ) (while timely post-sentence motion tolls the appeal period, an untimely post-sentence motion does not). Appellant did not seek to reinstate his appeal at No. 1620 MDA 2017. On February 26, 2018, Appellant filed the instant appeal. Because Appellant's untimely post-sentence motion did not toll the appeal period, the appeal was untimely and this Court quashed it on June 4, 2018. On June 25, 2018, Appellant filed an application for reconsideration of the June 4, 2018 quashal. On June 28, 2018, this Court entered an order stating that "a breakdown in the operations of this Court may have occurred." Order, 6/28/18. Thus, we vacated the June 4, 2018 order and reinstated the underlying appeal. Id.

Both Appellant and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.

On appeal, Appellant presents three issues:

1. Do sheriffs and their deputies possess the authority to stop a motorist for an expired registration sticker, a summary violation of the Motor Vehicle Code?

2. Did the Commonwealth possess sufficient evidence to convict [Appellant] of DUI under both 75 Pa.C.S.[A. §] 3802(d)(2) and (d)(3) ?

3. Is the lower court's verdict contrary to the weight of the evidence?

Appellant's Brief at 5.

Appellant first challenges the trial court's denial of his suppression motion. Our standard of review is as follows:

[An appellate court's] standard of review in addressing a challenge 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, [the appellate court] is bound by [those] 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 [ ] plenary review.

Commonwealth v. Mason , 130 A.3d 148, 151-52 (Pa. Super. 2015) (citation omitted). Additionally, "our scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing." Commonwealth v. Rapak , 138 A.3d 666, 670 (Pa. Super. 2016) (citing In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1087 (2013) ).

Appellant claims that "[he] was deprived of his Fourth Amendment and Article I, Section 8 guarantees when the trial court failed to suppress evidence that was obtained as the result of an illegal stop and search." Appellant's Brief at 10. Specifically, Appellant asserts that "the deputy sheriff lacked the statutory or common law authority to detain Appellant for an expired registration sticker seen on his vehicle." Id. The essence of Appellant's argument is that "[s]heriffs possess no statutory authority to enforce the Motor Vehicle Code, and the expired sticker does not amount to a ‘breach of the peace’ as understood at common law." Id. Appellant cites Commonwealth v. Marconi , 619 Pa. 401, 64 A.3d 1036 (2013), and Commonwealth v. Leet , 537 Pa. 89, 641 A.2d 299 (1994), to support his argument. Upon review, we are not persuaded that he is entitled to relief.

"The Fourth Amendment of the Federal Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures." Commonwealth v. Walls , 53 A.3d 889, 892 (Pa. Super. 2012). Our Constitution establishes sheriffs as "[c]ounty officers." Pa. Const. Art. IX, § 4. However, while "the Constitution establishes the office, it does not describe the duties of a sheriff." Kopko v. Miller , 586 Pa. 170, 892 A.2d 766, 770 (2006). "The General Assembly has limited the powers and duties of sheriffs to those ‘authorized or imposed upon them by statute.’ Further, a sheriff is mandated to ‘serve process and execute orders directed to him pursuant to the law.’ " Id. (citing 13 P.S. § 40 ; 42 Pa.C.S.A. § 2921 ).

Although "sheriffs and their deputies are not ‘police officers’ under the Vehicle Code," Marconi , 64 A.3d at 1041, in Leet , our Supreme Court held "that the common law powers of the sheriff include the power to enforce the motor vehicle code, and that such powers have not been abrogated by statute or otherwise." Leet , 641 A.2d at 301. The Supreme Court stated: "a sheriff (and his deputies) may make arrests for motor vehicle violations which amount to breaches of the peace committed in their presence," where the sheriff or deputy has "complete[d] the same type of training that is required of police officers throughout the Commonwealth." Id. at 303. Notably, the Supreme Court in Leet did not identify violations which would amount to "breaches of the peace." See Marconi , 64 A.3d at 1049 n.5 ("At the very least, Leet should have considered the consequences of overlaying common-law arrest powers for one category of peace officers, cabined only by an undefined breach-of-the-peace litmus to determine arrest authority, over such a more refined statutory scheme.") (emphasis added).

This Court, however, has considered whether driving while operating privilege is suspended or revoked, a summary offense under 75 Pa.C.S.A. § 1543, amounted to "a ‘breach of the peace,’ as contemplated by our Supreme Court in ... Leet ...." Commonwealth v. Lockridge , 781 A.2d 168, 169 (Pa. Super. 2001), affirmed on other grounds , 570 Pa. 510, 810 A.2d 1191 (2002). In an argument analogous to the one before us, the defendant in Lockridge argued that that the sheriff's deputy who cited him for violating Section 1543"was unauthorized to issue the citation in question because the traffic violation of driving while his license was suspended did not amount to a ‘breach of the peace[.]’ " Id. at 170. In finding the defendant's arguments "unconvincing and his interpretation of the Leet decision faulty," we opined:

[The defendant's] interpretation of Leet illogically limits the

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