Commonwealth v. Weaver

• Decision Date: 28 August 2013
• Citation: 2013 PA Super 245,76 A.3d 562
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Larry Francis WEAVER, Appellant. Commonwealth of Pennsylvania, Appellant v. Larry Francis Weaver, Appellee.
• Court: Pennsylvania Superior Court

76 A.3d 562

2013 PA Super 245

COMMONWEALTH of Pennsylvania, Appellee

v.Larry Francis WEAVER, Appellant.

Commonwealth of Pennsylvania, Appellant

v.Larry Francis Weaver, Appellee.

Superior Court of Pennsylvania.

Submitted May 13, 2013.

Filed Aug. 28, 2013.

David R. Erhard, Gettysburg, for Weaver.

Gerald N. Mangieri, Assistant District Attorney, Chambersburg, for Commonwealth.

BEFORE: BOWES, OTT, and FITZGERALD,^* JJ.

OPINION BY BOWES, J.:

Larry Francis Weaver appeals from the judgment of sentence of six months of intermediate punishment that was imposed after he was found guilty of two counts of driving under the influence of alcohol. The Commonwealth has filed a cross-appeal raising a contention about the costs assessed against Appellant in this case. We affirm.

On January 1, 2010, Appellant was observed driving in an erratic manner and was stopped by state police. Appellant was arrested after he displayed sluggish and slow movements, failed a field sobriety test, and pills were found in his car. On April 9, 2010, two criminal informations were filed, setting forth that Appellant was being charged with two counts of DUI. Count one provided that Appellant was charged under 75 Pa.C.S. § 3802(d)(1)(ii), which states that “An individual may not drive, operate or be in actual physical control of the movement of a vehicle [when] ... [t]here is in the individual's blood any amount of a ... Schedule II or Schedule III controlled substance, ... which has not been medically prescribed for the individual.” Count two of the information charged Appellant under 75 Pa.C.S. § 3802(d)(2), which provides, “An individual may not drive, operate or be in actual physical control of the movement of a vehicle [when] ... [t]he individual is under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.” Both informations indicated that Appellant had “morphine, a schedule II controlled substance, in his blood within two hours” after he drove his vehicle. Informations, 4/9/10, at 1. No other drugs were mentioned in those documents.

Appellant filed a pretrial motion to suppress the results of his blood test by challenging the constitutionality of the vehicular stop and his arrest. That motion was denied following a hearing, and Appellant thereafter proceeded to a nonjury trial on March 23, 2011. After police testified, the Commonwealth presented the testimony of the witnesses who conducted the testing of Appellant's blood. When a witness began to testify that benzodiazepines consisting of diazepam and nordiazepam were discovered in his blood, Appellant objected. He noted that there was no indication in the informations that benzodiazepines were found in his system and contended that the evidence was inadmissible since it was at variance with those documents, which only mentioned morphine.

The Commonwealth was permitted to amend the informations to add that Appellant also had benzodiazepines, diazepam and nordiazepam in his blood within two hours of when he was driving. Upon request, Appellant was granted a continuance. On June 29, 2011, the expert witnesses testified as to the chain of custody and testing of Appellant's blood. Additionally, the Commonwealth presented the opinion of an expert witness that the substances discovered in Appellant's blood, which consisted of morphine, diazepam and nordiazepam, rendered him incapable of driving safely. On September 2, 2011, the trial court adjudicated Appellant guilty of both counts of DUI.

Appellant was sentenced on June 13, 2012, to six months of intermediate punishment, which included seventy-two hours imprisonment and six weeks on electronic monitoring, as well as costs. Appellant filed a post-sentence motion arguing that the criminal laboratory user fee assessed as costs was unwarranted. He complained that the imposed costs included a fee for the appearance of the laboratory personnel at the second trial. He argued those expenses should not have been awarded to the Commonwealth since the trial was continued to a second day based on the Commonwealth's mid-trial amendment of the informations to include that Appellant had drugs other than morphine in his blood. On October 2, 2012, the trial court granted that post-sentence motion and reduced the criminal laboratory user fee portion of the taxable costs from $13,442.89 to $6,520.35. Appellant filed an appeal from the judgment of sentence, and the Commonwealth filed a cross-appeal due to the grant of Appellant's post-sentence motion.

We first address the issues raised by Appellant:

1. The trial court erred in finding that there was probable cause to arrest because the primary basis of probable cause was evidence of [Appellant's] performance on the horizontal gaze nystagmus test (HGN) which should have been ruled inadmissible.

2. The trial court erred in finding that there was sufficient evidence to convict [Appellant] of DUI because the trial court, in violation of [Appellant's] rights under the Confrontation Clause of the Constitution, improperly allowed evidence of a blood test result despite the lack of testimony from the analyst who actually tested [Appellant's] blood for morphine.

Appellant's brief at 4.

Appellant's first claim is that the suppression court erred in concluding that there was probable cause for his arrest. Our standard of review in this context is settled:

In addressing a challenge to a trial court's denial of a suppression motion, we are limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the Commonwealth prevailed in the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as it 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. Brown, 64 A.3d 1101, 1104 (Pa.Super.2013) (citation omitted).

The existence of probable cause for an arrest is assessed by using the following principles:

Probable cause to arrest exists when the facts and circumstances within the police officer's knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested. Probable cause justifying a warrantless arrest is determined by the totality of the circumstances.

Commonwealth v. Williams, 941 A.2d 14, 27 (Pa.Super.2008) (internal citations and quotation marks omitted).

.... It is the facts and circumstances within the personal knowledge of the police officer that frames the determination of the existence of probable cause. See, e.g., Commonwealth v. Lawson, 454 Pa. 23, 27, 309 A.2d 391, 394 (1973) (“Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that an offense has been committed.”).

Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa.Super.2011) (en banc) (emphasis in original).

In this case, the court denied Appellant's suppression motion based upon the following facts, which are supported by the evidence adduced at the suppression hearing:

On January 1, 2010, Timothy Timmons was driving north on State Route 997 when he encountered a vehicle driven by Defendant swerving back and forth across the median. After following the vehicle onto Interstate 81, Timmons called 911. Timmons informed the dispatcher that a vehicle was driving erratically, and related to the dispatcher Timmons' name, address, and the license plate number of the vehicle he was following. The dispatcher asked Timmons to follow the vehicle until state police arrived, and he agreed to do so. Timmons followed the vehicle until state police passed him on Route 30. Up until the time that the police passed Timmons, he gave the dispatcher live, moment-to-moment updates as to what he was observing, and these updates were passed along to Trooper Matthew Hunter.

Trooper Hunter was the first state trooper to make contact with the vehicle on Route 30. After passing Timmons, he followed the vehicle for a short time, and observed the vehicle drifting from the right shoulder of the road across to the center median, and then back to the right shoulder. Trooper Hunter then activated his lights and initiated a traffic stop. The vehicle came to a stop only after swerving from the right shoulder again.

Trooper Hunter noticed that Defendant's pupils were very constricted, but did not notice any other sign of intoxication. However, based on Trooper Hunter's observations of Defendant's driving, corroborated by Timmons' observations, and the size of Defendant's pupils, he asked Defendant to perform field sobriety tests. Defendant was limping, and explained that he had a leg injury. Therefore, Trooper Hunter proceeded with only one field sobriety test, the horizontal gaze nystagmus (HGN) test, due to Defendant's physical state. [That test was conducted twice.] Defendant's eyes showed extensive nystagmus, and this led Trooper Hunter to believe that Defendant was under the influence of some type of drug. Trooper Hunter asked Defendant whether he had taken any medication, and Defendant denied that he had taken any that day. Trooper Hunter consulted with two other troopers, and both felt that Defendant was under the influence of something.

Trooper Hunter called the station to try to get a Drug Recognition Expert to come to the scene, in order to evaluate Defendant. While Trooper Hunter was on the phone, Trooper Stephen Rowe obtained consent from Defendant to search the vehicle. As a result of this search, Trooper Rowe found a keychain, with a canister attached to it, hanging from the...