Com. v. Spence, O.

J-A03013-23

                                   

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ODANE A. SPENCE                            :
                                               :
                       Appellant               :   No. 1977 EDA 2022

         Appeal from the Judgment of Sentence Entered June 30, 2022
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0001992-2021


BEFORE:      KING, J., SULLIVAN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                           FILED FEBRUARY 15, 2023

       Appellant, Odane A. Spence, appeals from the judgment of sentence

entered in the Court of Common Pleas of Monroe County following his

conviction at a non-jury trial on the charges of driving while under the

influence (“DUI”) of a controlled substance-impaired ability, driving while

operating privileges are suspended or revoked, operating a vehicle without

financial responsibility, turning movements and required signals, and careless

driving.1 After a careful review, we affirm.

       The relevant facts and procedural history are as follows: On September

27, 2021, the Commonwealth filed an Information charging Appellant with


____________________________________________


* Former Justice specially assigned to the Superior Court.


1 75 Pa.C.S.A. §§ 3802(d)(2), 1543(a), 1786(f), 3334(a), and 3714(a),
respectively.
J-A03013-23


DUI and various traffic offenses in connection with an incident occurring on

July 27, 2020.      With the assistance of counsel, Appellant filed a pre-trial

omnibus suppression motion on April 25, 2022. Therein, Appellant sought the

suppression of all evidence on the basis the police improperly stopped his

vehicle. He also sought suppression of the statements he made to the police

“relative to drug use” since he was not provided with Miranda2 warnings prior

thereto. Appellant’s Pre-Trial Suppression Motion, filed 4/25/22, at 3.

       On April 26, 2022, the suppression court held a suppression hearing at

which Pennsylvania State Police Trooper Kody Nowicki was the sole testifying

witness. Specifically, Trooper Nowicki testified that, on July 27, 2020, during

daylight hours, he was on duty and working at a safety checkpoint with other

officers on Woodland Drive in Paradise Township. N.T., 4/26/22, at 11. The

purpose of the safety checkpoint was for the police to determine whether

vehicles were properly registered and inspected, as well as to determine

whether drivers and passengers were wearing their seatbelts. Id.

       Trooper Nowicki testified that, while working at the checkpoint, he was

standing outside of his police vehicle “monitoring traffic that was coming from

the casino area to Route 611.” Id. at 12. He indicated he had a clear line of

sight down the roadway. Id. He testified that, as he monitored the traffic, he

“observed a silver sedan turn around prior to the checkpoint. As the sedan



____________________________________________


2 Miranda v. Arizona, 

, 

 (1966).


                                           -2-
J-A03013-23


was turning around, the sedan did not utilize its left turn signal [which was a]

violation.” Id. at 13. Trooper Nowicki clarified the silver sedan made a U-

turn on Woodland Drive without using its turn signal. Id. at 19.

      Trooper Nowicki testified that:

            At that point, my vehicle was further down the road, and I
      was standing next to Trooper Anthony Spegar’s patrol vehicle.
      Due to the far location of my patrol vehicle, I—myself and Trooper
      Spegar entered his vehicle and attempted to catch up to the
      suspect vehicle….Trooper Spegar was driving and I was the
      passenger of his [patrol] vehicle.

Id. at 13.

      Trooper Nowicki indicated the silver sedan was not that far in front of

the checkpoint before it made the U-turn and then drove off at a high rate of

speed. Id. at 19. Specifically, he noted that, as he and Trooper Spegar

attempted to catch up to the silver sedan, the silver sedan “was traveling at

a very high rate of speed and the vehicle either had a modified exhaust or no

exhaust where you’re able to hear the vehicle and its RPMs increasing as [the

police] were attempting to catch up to the vehicle.”      Id. at 20.    Trooper

Nowicki testified that, while he and Trooper Spegar followed the silver sedan,

he observed the silver sedan make a left hand turn from Woodland Drive onto

Meadowside Road without using a turn signal. Id.

      Trooper Nowicki indicated that, after the silver sedan slowed down, he

entered the sedan’s license plate into the NCIC CLEAN (“NCIC”) database via

his mobile desktop terminal. Id. at 35. As a result, he discovered the silver

sedan’s registration was suspended in the State of New York due to an

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J-A03013-23


insurance lapse. Id. at 20. He also noted the owner of the vehicle, who was

later identified as the driver (Appellant), had a suspended driver’s license;

however, this information was not discovered until “a later portion of the traffic

stop.” Id. at 35.

      Trooper Nowicki testified that, after Appellant stopped the silver sedan,

he and Trooper Spegar exited the police cruiser to approach Appellant. Id. at

24. He testified that, as soon as he “exited Trooper Spegar’s patrol vehicle,

[he] immediately detected the odor of marijuana. It appeared to be coming

from the interior of that suspect vehicle.” Id. As Trooper Nowicki approached

the silver sedan, he determined the odor of marijuana was emanating from

the silver sedan. Id. Meanwhile, Trooper Spegar approached the vehicle and

seized the car keys from Appellant, who had just led the police on a highspeed

chase. Id. at 20.

      Trooper Nowicki testified Appellant informed the police he saw the safety

checkpoint and turned around because he knew “his license or his registration”

had been suspended. Id. at 23. Trooper Nowicki testified he asked Appellant

to exit the silver sedan and “[Appellant] brought up the fact of marijuana when

I asked him to exit the vehicle.” Id. Trooper Nowicki asked Appellant “when

was the last time he smoked,” and Appellant indicated “approximately four

hours ago.” Id.

      On cross-examination, Trooper Nowicki confirmed that, while he was on

duty at the safety checkpoint, he observed the silver sedan “turn around


                                      -4-
J-A03013-23


without its turn signal[,]” and he and Trooper Spegar immediately entered a

police cruiser to follow the silver sedan. Id. at 27. He confirmed the silver

sedan traveled away from the checkpoint, as well as the police cruiser, at a

“high speed” such that Trooper Spegar remarked “woo.” Id. at 32. He noted

that, as the vehicle continued to pull away from the police cruiser, he activated

the police cruiser’s lights because the silver sedan “was traveling well above

the speed limit.” Id. at 33.

      At the conclusion of the hearing, the suppression court specifically

stated it found “Trooper Nowicki’s testimony to be credible.” Id. at 39. The

suppression court denied Appellant’s motion to suppress.

      The parties then stipulated to proceed immediately to a non-jury trial,

as well as stipulated to incorporating the testimony and cross-examination of

Trooper Nowicki from the suppression hearing.         Id.   The Commonwealth

indicated it had additional testimony to offer from Trooper Nowicki for

purposes of the non-jury trial.

      Trooper Nowicki testified that Appellant did not have a valid driver’s

license or vehicle registration at the time he was driving on July 27, 2020. Id.

at 40.    Specifically, he noted he entered Appellant’s driver’s license

information and license plate information into the NCIC database during the

traffic incident, and the State of New York “certified that [Appellant’s] driver’s

license and registration were suspended at the time of the traffic stop.” Id.

Further, Appellant failed to provide valid vehicle insurance while on the scene,


                                      -5-
J-A03013-23


and Trooper Nowicki confirmed Appellant did not have valid vehicle insurance.

Id. at 48-49.

      Trooper Nowicki noted he had extensive training and on-duty experience

in administering field sobriety tests, as well as investigating suspected DUI

cases.   Id. at 44-45. He confirmed that, during the traffic stop, Appellant

was subjected to field sobriety tests, which he could not perform adequately.

Id. He noted that, because of the signs that Appellant was intoxicated, he

asked Appellant if he used cocaine or methamphetamine, and Appellant “did

not admit to any other narcotics other than marijuana.” Id. at 46. Trooper

Nowicki testified that “based upon [his] training and experience as well as the

interview and observations on [the] scene,…[Appellant] was unable to safely

operate a motor vehicle.” Id. at 45.

      Trooper Nowicki indicated he read Appellant the implied consent warning

form, Appellant related that he consented to testing, and Appellant was

transported to the Monroe County Correctional Facility.      Id. at 46.    After

arriving at the correctional facility, Trooper Nowicki again read Appellant the

implied consent waiver form, and Appellant indicated his refusal to consent to

testing. Id.

      On cross-examination, Trooper Nowicki testified that “[he] believed

[Appellant’s driver’s license] was also suspended in the State of Pennsylvania

for a previous DUI, but [he did] not recall 100 percent.”     Id. at 54.    The

Commonwealth entered into evidence Appellant’s driver’s license record from


                                     -6-
J-A03013-23


the Pennsylvania Department of Transportation (“PennDOT”).3 The PennDot

record reveals Appellant’s driver’s license record was in a “suspended” status.

       At the conclusion of hearing all testimony and receiving all evidence, the

trial court found Appellant guilty of the offenses set forth supra. On June 30,

2022, Appellant proceeded to a sentencing hearing, at which the trial court

imposed an aggregate sentence of seventy-two hours to six months in prison,

to be followed by six months of probation.        Appellant did not file a post-

sentence motion; however, he filed a timely counseled notice of appeal. All

Pa.R.A.P. 1925 requirements have been met.

       On appeal, Appellant sets forth the following issues in his “Statement of

Questions Involved” (verbatim):

       I.     Did the trial court abuse its discretion by not suppressing
              the traffic stop where there was no indication of a motor
              vehicle violation when a driver turns around before a DUI
              checkpoint[?]
       II.    Did the trial court abuse its discretion by not to [sic]
              suppressing the statements of Appellant when Appellant
              was suspected of a crime and the Trooper did not Mirandize
              Appellant before asking him questions?
       III.   Did the trial court abuse its discretion by finding Appellant
              guilty as to Driving Under the Influence-Controlled
              Substance, in that there was insufficient evidence to convict
              Appellant of the crime, in that the Commonwealth failed to
              prove an element of the crime that the Appellant was
              rendered incapable of safely driving when Appellant turned
              around prior to a DUI checkpoint and there was no evidence
              of bad driving?


____________________________________________


3 We note the PennDOT driver’s license record has been included in the
certified record.

                                           -7-
J-A03013-23


       IV.    Did the trial court abuse its discretion by finding Appellant
              guilty as to Driving Under the Influence-Controlled
              Substance, in that it was against the weight of the evidence
              to convict Appellant of the crime, in that the Commonwealth
              failed to prove an element of the crime that the Appellant
              was rendered incapable of safely driving when Appellant
              turned around prior to a DUI checkpoint and there was no
              evidence of bad driving?
       V.     Did the trial court abuse its discretion by finding Appellant
              guilty as to Driving Under the Influence-Controlled
              substance, in that there was insufficient evidence to convict
              Appellant of the crime, that Appellant was under the
              influence of a controlled substance when there was no BAC
              test and a search revealed no evidence of drug activity?
       VI.    Did the trial court abuse its discretion in finding Appellant
              guilty as to Driving Under the Influence-Controlled
              Substance, in that it was against the weight of the evidence
              to convict Appellant of the crime, in that the Commonwealth
              failed to prove an element of the crime, that the Appellant
              was under the influence of a controlled substance when
              there was no BAC test and a search revealed no evidence of
              drug activity?

Appellant’s Brief at 7-8 (suggested answers omitted).

       Preliminarily, we address Appellant’s third and fifth issues, which

present challenges to the sufficiency of the evidence supporting Appellant’s

conviction for DUI controlled substance-impaired ability under 75 Pa.C.S.A. §

3802(d)(2).4 Specifically, Appellant contends the evidence was insufficient to

sustain his conviction under Subsection 3802(d)(2) since there was no

evidence of impaired driving, no physical evidence related to drug use


____________________________________________


4 Since a successful sufficiency of the evidence claim warrants discharge on

the pertinent crime, we shall address this issue first. See Commonwealth
v. Torrito, 

 (Pa.Super. 2013) (en banc).

                                           -8-
J-A03013-23


discovered in Appellant’s vehicle, and no evidence of a controlled substance

in Appellant’s blood.

      It is well settled:

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all of the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant’s guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact while passing upon the
      credibility of witnesses and weight of the evidence produced, is
      free to believe all, part or none of the evidence.

Commonwealth v. Gause, 

 (Pa.Super. 2017) (en

banc) (citation omitted).

      Although the finder of fact may make reasonable inferences from the

testimony presented, the “inferences must flow from facts and circumstances

proven in the record, and must be of such volume and quality as to overcome

the presumption of innocence and satisfy the [fact-finder] of an accused’s guilt

beyond a reasonable doubt.” Commonwealth v. Scott, 

 (Pa.Super. 1991). “The trier of fact cannot base a conviction on

conjecture and speculation and a verdict which is premised on suspicion will


                                      -9-
J-A03013-23


fail even under the limited scrutiny of appellate review.”          

 Finally,

“[b]ecause evidentiary sufficiency is a question of law, our standard of review

is de novo and our scope of review is plenary.” Commonwealth v. Diamond,

, 

 (2013).

      Appellant was convicted of violating 75 Pa.C.S.A. § 3802(d)(2), which

provides that “[a]n 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.” 75 Pa.C.S.A. § 3802(d)(2).          Therefore, to

convict a defendant under this section, the Commonwealth must establish

three elements: 1) that the defendant drove; 2) while under the influence of

a controlled substance; and 3) to a degree that impairs the defendant’s ability

to drive safely. Commonwealth v. Griffith, 

, 

(2011).

      Evidence of consumption of a drug, standing alone, is insufficient to

prove impairment. Commonwealth. v. Etchison, 

(Pa.Super. 2007). Instead, impairment evidence should be drawn from the

totality of the factual circumstances. Commonwealth. v. DiPanfilo, 

 (Pa.Super. 2010). Contrary to Appellant’s assertion, our Supreme

Court has recognized that Subsection 3802(d)(2) “does not require that a drug

be measured in the defendant’s blood.” 

.


                                     - 10 -
J-A03013-23


Further, we note there is no “mandatory requirement for expert testimony to

establish that the defendant’s inability to drive safely was caused by ingestion

of a drug[.]” Id. at 1239.

      In the case sub judice, Appellant does not dispute that he was driving,

operating, or in actual physical control of the movement of his vehicle on July

27, 2020, during the traffic stop at issue. Rather, he contends the

Commonwealth did not present sufficient evidence establishing he was under

the influence of a drug to a degree that impaired his ability to safely drive,

operate, or be in actual physical control of the movement of his vehicle.

      Here, the trial court specifically found Trooper Nowicki’s testimony

credible regarding Appellant driving under the influence of marijuana to a

degree that impaired his ability to drive safely. See Trial Court Opinion, filed

9/28/22, at 11. Trooper Nowicki testified he observed Appellant make a U-

turn, drive away from the officers/checkpoint at a high rate of speed, and

make a left hand turn from Woodland Drive onto Meadowside Drive without

using a turn signal.   He testified Appellant led the police on a high-speed

chase, and after Appellant stopped his vehicle, Trooper Nowicki immediately

detected the odor of marijuana, which grew stronger as he approached

Appellant’s vehicle.   Appellant admitted to Trooper Nowicki that he had

smoked marijuana in the hours prior to driving.      Further, Trooper Nowicki

testified Appellant could not adequately perform field sobriety tests.       He

specifically testified that “based upon [his] training and experience as well as


                                     - 11 -
J-A03013-23


the interview and observations on [the] scene,…[Appellant] was unable to

safely operate a motor vehicle.”               N.T., 4/26/22, at 45.   Based on the

aforementioned, we agree with the trial court that the Commonwealth

presented sufficient evidence to sustain Appellant’s conviction under 75

Pa.C.S.A. § 3802(d)(2), and therefore, we find no merit to Appellant’s

sufficiency claims.

       Next, we address Appellant’s fourth and sixth issues in which Appellant

contends the trial court’s verdict as to his DUI conviction is against the weight

of the evidence.5 Specifically, Appellant contends there was no credible

evidence he was under the influence of a controlled substance to a degree

that impaired his ability to drive safely.

       Initially, we note that, in his fourth and sixth issues, Appellant conflates

the issues of sufficiency and weight of the evidence. We remind Appellant

that sufficiency and weight claims are clearly distinct. See Commonwealth

v. Widmer, 

, 

 (2000) (discussing the distinctions

between a claim challenging sufficiency of the evidence and a claim the verdict

is against weight of the evidence). “A true weight of the evidence challenge

concedes that sufficient evidence exists to sustain the verdict but questions

which evidence is to be believed.” Commonwealth v. Charlton, 

 (Pa.Super. 2006) (quotation omitted).


____________________________________________


5Although set forth as separate issues, we note the argument sections for
Appellant’s fourth and sixth issues are nearly identical.

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J-A03013-23


       To the extent Appellant presents a proper weight of the evidence claim

on appeal, we note the following legal precepts.6

       “The weight of the evidence is exclusively for the finder of fact, who is

free to believe all, none[,] or some of the evidence and to determine the

credibility of the witnesses.” Commonwealth v. Talbert, 

(Pa.Super. 2015) (quotation marks and quotation omitted).             Resolving

contradictory testimony and questions of credibility are matters for the finder

of fact. Commonwealth v. Hopkins, 

 (Pa.Super. 2000).

It is well-settled that we cannot substitute our judgment for that of the trier

of fact. 

       Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

lower court; this Court does not review the underlying question of whether

the verdict is against the weight of the evidence. See 

____________________________________________


6 We note that challenges to the weight of the evidence must be raised with

the trial court orally at any time before sentencing, by written motion at any
time before sentencing, or in a post-sentence motion. See Pa.R.Crim.P. 607.
Here, while Appellant raised his weight of the evidence claims in his Rule
1925(b) statement, he has not set forth that place in the record where he
preserved his claims under Pa.R.Crim.P. 607.
       In any event, assuming Appellant failed to preserve his weight claim
under Rule 607, we decline to find waiver. Our review reveals that, after
sentencing, the trial court failed to advise Appellant of his post-sentence and
appellate rights. In such circumstances, we deem there to have been a
“breakdown” such that we may excuse waiver of a weight of the evidence
claim. Commonwealth v. Patterson, 

 (Pa.Super. 2007);
Commonwealth v. Malovich, 

 (Pa.Super. 2006).

                                          - 13 -
J-A03013-23


      Because the trial judge has had the opportunity to hear and see
      the evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the trial
      judge when reviewing a trial court’s determination that the verdict
      is against the weight of the evidence. One of the least assailable
      reasons for granting or denying a new trial is the lower court’s
      conviction that the verdict was or was not against the weight of
      the evidence and that a new trial should be granted in the interest
      of justice.

Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to

prevail on a challenge to the weight of the evidence, the evidence must be so

tenuous, vague and uncertain that the verdict shocks the conscience of the

court.” Id. (quotation marks and quotation omitted).

      Here, in rejecting Appellant’s weight of the evidence claim, the trial court

relevantly indicated the following:

            Trooper Nowicki’s uncontradicted testimony was sufficient
      to prove each material element of the crime beyond a reasonable
      doubt. Trooper Nowicki testified in a convincing manner. He was
      not uncertain, confused, self-contradictory, or evasive. He was
      trained in the investigation of individuals suspected of driving
      under the influence of drugs, and he had experience conducting
      such investigations. [The trial court,] therefore, find[s] Trooper
      Nowicki’s testimony to be credible[.] [The trial court] find[s] that
      the verdict was not against the weight of the evidence.

Trial Court Opinion, filed 9/28/22, at 11 (citation to record omitted).

      We conclude the trial court did not abuse its discretion in rejecting

Appellant’s challenge to the weight of the evidence. 

 We note

the trial court was free to determine the weight to be given to Trooper

Nowicki’s testimony. To the extent Appellant requests that we re-weigh the

evidence and assess the credibility of the witness presented at trial, we decline


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J-A03013-23


to do so as it is a task that is beyond our scope of review. See

Commonwealth v. Collins, 

 (Pa.Super. 2013) (stating

that “[a]n appellate court cannot substitute its judgment for that of the finder

of fact”). Accordingly, we find no merit to Appellant’s weight of the evidence

claims.

      We next address Appellant’s first and second issues in which he

contends the suppression court erred in denying his pre-trial suppression

motion.   Specifically, in his first issue, Appellant contends there was no

legitimate basis for the police to stop his vehicle.     In his second issue,

Appellant contends he was subjected to custodial interrogation without

Miranda warnings when Trooper Nowicki asked him “about drug use[.]”

Appellant’s Brief at 14.

      We address Appellant’s suppression issues mindful of the following

standard and scope of review:

            Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct. We are bound by the suppression court’s factual findings
      so long as they are supported by the record; our standard of
      review on questions of law is de novo. Where, as here, the
      defendant is appealing the ruling of the suppression court, we may
      consider only the evidence of the Commonwealth and so much of
      the evidence for the defense as remains uncontradicted. Our
      scope of review of suppression rulings includes only the
      suppression hearing record and excludes evidence elicited at trial.

Commonwealth v. Yandamuri, 

, 

 (2017)

(citations omitted).

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J-A03013-23


      As it pertains to Appellant’s issue regarding the stop of his motor vehicle,

this Court has set forth the following legal precepts:

             A police officer has the authority to stop a vehicle when he
      or she has reasonable suspicion that a violation of the vehicle
      code has taken place, for the purpose of obtaining necessary
      information to enforce the provisions of the code. 75 Pa.C.S.A. §
      6308(b). However, if the violation is such that it requires no
      additional investigation, the officer must have probable cause to
      initiate the stop. Commonwealth v. Feczko, 

 (Pa.Super. 2010) [(en banc)].
             Put another way, if the officer has a legitimate expectation
      of investigatory results, the existence of reasonable suspicion will
      allow the stop—if the officer has no such expectations of learning
      additional relevant information concerning the suspected criminal
      activity, the stop cannot be constitutionally permitted on the basis
      of mere suspicion.

Commonwealth v. Brown, 

 (Pa.Super. 2013) (quoting

Commonwealth v. Chase, 

, 

 (2008)) (bold in

original).

      In the case sub judice, the suppression court specifically found credible

Trooper Nowicki’s testimony that he stopped Appellant’s vehicle because he

failed to properly use turn signals. Trial Court Opinion, filed 9/28/22, at 4-5.

As further investigation would not help to establish whether Appellant turned

without using the required signal, Trooper Nowicki, as the suppression court

properly determined, was required to have probable cause to initiate the stop.

See 

            The police have probable cause where the facts and
      circumstances within the officer’s knowledge are sufficient to
      warrant a person of reasonable caution in the belief that an
      offense has been or is being committed. We evaluate probable

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J-A03013-23


      cause by considering all relevant facts under a totality of
      circumstances analysis.

Commonwealth v. Hernandez, 

, 

 (2007)

(quotation and citations omitted).

      The statute governing use of signals provides in pertinent part as

follows.

      § 3334. Turning movements and required signals
      (a) General rule.—Upon a roadway no person shall turn a vehicle
      or move from one traffic lane to another or enter the traffic stream
      from a parked position unless and until the movement can be
      made with reasonable safety nor without giving an appropriate
      signal in the manner provided in this section.

75 Pa.C.S.A. § 3334(a), (b) (bold in original).

      Here, in finding Trooper Nowicki had probable cause to stop Appellant’s

silver sedan based on a violation of Section 3334, the suppression court

relevantly held as follows:

            [Trooper Nowicki] testified that he observed “a silver sedan
      turn around prior to the checkpoint. As the sedan was turning
      around, the sedan did not utilize its left turn signal in violation [of
      75 Pa.C.S.A. § 3334(a)].” When Trooper Nowicki made this
      observation, it was “during daytime hours,” there were no
      “adverse weather conditions,” and he had a “clear line of sight”
      down the roadway. He then entered a patrol vehicle with another
      trooper and attempted to catch up to the sedan. Trooper Nowicki
      observed another violation of [Section 3334(a)] before he caught
      up to the sedan, testifying “[W]hen the vehicle turned left from
      Woodland Drive onto Meadowside Road, [Appellant] didn’t utilize
      his turn signal[.]”
                                       ***
            Trooper Nowicki consistently testified that he observed
      Appellant turn a vehicle twice without giving an appropriate signal



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J-A03013-23


       pursuant to 75 Pa.C.S.A. § 3334(a). Trooper Nowicki therefore
       had probable cause to stop Appellant’s vehicle.

Trial Court Opinion, filed 9/28/22, at 4-6 (citations to record omitted)

(footnote omitted).

       We agree with the trial court’s sound reasoning. After viewing the traffic

violations, Trooper Nowicki unquestionably possessed facts to warrant belief

by any reasonable person that Appellant violated Section 3334(a) of the

vehicle code. 

 Thus, Trooper Nowicki had probable cause

to stop Appellant’s vehicle.7

       We note that we find unpersuasive Appellant’s argument the troopers

unconstitutionally stopped his silver sedan solely because he failed to go

through the safety checkpoint. As Appellant correctly notes, our Supreme

Court has held that “failing to go through [a] roadblock in and of

itself…provides no basis for police intervention.” Commonwealth v.

Scavello, 

, 

 (1999). However, Appellant fails

to recognize that our Supreme Court has further held that if the “[p]olice

should observe a violation of the Motor Vehicle Code or have a reasonable

suspicion that the vehicle which is avoiding the roadblock is involved in

criminal conduct, such observation or suspicion, which can be articulated with


____________________________________________

7
  Trooper Nowicki further testified that, after Appellant made the U-turn
without using a turn signal, Appellant sped off at a high rate of speed. Because
we have determined that Appellant’s violation of 75 Pa.C.S.A. § 3334(a) was
a sufficient basis for the traffic stop, we need not consider the issue further.

                                          - 18 -
J-A03013-23


particularity, would be the basis for a vehicle stop.” Id. Here, the suppression

court specifically found, and the record supports the court’s factual finding,

that Trooper Nowicki observed a turn signal violation during the time Appellant

avoided the checkpoint. Thus, there is no merit to Appellant’s claim.

      As it pertains to Appellant’s issue that he was subjected to custodial

interrogation without Miranda warnings when Trooper Nowicki asked him

“about drug use,” the following relevant legal precepts apply.

      Initially, we note the courts have recognized there are three levels of

interaction between the police and citizens: (1) a mere encounter, (2) an

investigative detention, and (3) a custodial detention. Commonwealth v.

Clinton, 

 (Pa.Super. 2006). Thus, we have stated:

             A mere encounter can be any formal or informal interaction
      between an officer and a citizen, but will normally be an inquiry
      by the officer of a citizen. The hallmark of this interaction is that
      it carries no official compulsion to stop or respond.
            In contrast, an investigative detention, by implication,
      carries an official compulsion to stop and respond, but the
      detention is temporary, unless it results in the formation of
      probable cause for arrest, and does not possess the coercive
      conditions consistent with a formal arrest. Since this interaction
      has elements of official compulsion it requires reasonable
      suspicion of unlawful activity. In further contrast, a custodial
      detention occurs when the nature, duration and conditions of an
      investigative detention become so coercive as to be, practically
      speaking, the functional equivalent of an arrest.

Commonwealth v. Jones, 

 (Pa.Super. 2005) (citations

omitted).

      It is long-settled that Miranda warnings are only required for the third-



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J-A03013-23


level interaction, i.e., custodial interrogation. Commonwealth v. Smith, 

, 

 (2003). However, it is equally settled law that a motor

vehicle stop is generally a second-level interaction, an investigative detention.

Clinton, 

. During a traffic stop, it is inherently reasonable

for an officer to order the driver of the vehicle to alight from the car.

Commonwealth v. Brown, 

 (Pa.Super. 1995). Further, the

officer “may ask the detainee a moderate number of questions to determine

his identity and to try to obtain information confirming or dispelling the

officer’s suspicions.” Commonwealth v. Wright, 

, 1109

(Pa.Super. 2019). For their safety, police officers may handcuff individuals

during an investigative detention. 

 (quotation and quotation marks

omitted).

      An investigative detention may develop into a custodial detention. 

“The key difference between an investigative and a custodial detention is that

the latter involves such coercive conditions as to constitute the functional

equivalent of an arrest.” Commonwealth v. Gonzalez, 

(Pa.Super. 2009) (quotation and quotation marks omitted).             The court

considers the totality of the circumstances to determine if an encounter is

investigatory or custodial. See Commonwealth v. Goldsborough, 

 (Pa.Super. 2011).

           The numerous factors used to determine whether a
      detention has evolved into an arrest include the cause for the
      detention, the detention’s length, the detention’s location,
      whether the suspect was transported against his or her will,

                                     - 20 -
J-A03013-23


      whether physical restraints were used, whether the police used or
      threatened force, and the character of the investigative methods
      used to confirm or dispel the suspicions of the police. [Moreover,
      we note] [c]ustodial interrogation has been defined as questioning
      initiated by the police after a person has been taken into custody
      or otherwise deprived of his or her freedom of action in any
      significant way. Further, an interrogation occurs when the police
      should know that their words or actions are reasonably likely to
      elicit an incriminating response from the suspect.

Clinton, 

 (citations omitted).

      Here, Appellant argues the following:

      After police saw Appellant’s vehicle turn around, they pursued him
      with lights and sirens. Appellant pulled over for the trooper. This
      was not an investigatory stop. This stop placed Appellant in
      custodial detention[,] and he was not free to leave. When the
      trooper questioned Appellant, he did not tell him about his
      Miranda rights. Because of this, Appellant believed he was
      required to answer this trooper. Appellant’s answer to [the]
      question about drug use, caused the Trooper to pursue the DUI
      charge.

Appellant’s Brief at 13.

      Initially, we remind Appellant that, contrary to his assertion, a motor

vehicle stop is generally a second-level interaction, an investigative detention.

Clinton, 

. Thus, in this case, when Appellant was pulled

over by the troopers, he was initially subjected to an investigative detention.

See 

 Appellant does not point to a specific statement at issue or indicate

when the investigative detention may have elevated to a custodial detention

prior to the police eliciting incriminating statements “about drug use[.]”

Appellant’s Brief at 14.




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J-A03013-23


      In any event, in explaining the reasons it rejected Appellant’s claim, the

trial court relevantly indicated the following:

             In this case, the initial justification for the traffic stop was
      Appellant’s failure to use his turn signal. When the vehicle
      stopped, Trooper Nowicki approached the vehicle with three other
      officers. One of the officers immediately [removed the keys from
      Appellant’s vehicle.]…Trooper Nowicki asked Appellant why
      Appellant had turned around and asked Appellant why he was in
      the area. Trooper Nowicki then asked Appellant to get out of the
      vehicle[, and after Appellant brought up the issue of marijuana,
      the officer] asked Appellant how recently Appellant had smoked.
      Appellant stated that he had smoked about four hours earlier.
                                       ***
            [After] the field sobriety tests, Trooper Nowicki asked
      Appellant if Appellant had ever used any drugs other than
      marijuana, and Appellant again admitted to using marijuana.
      Trooper Nowicki then read Appellant the [implied consent
      warning] form and informed Appellant that he was under arrest.
      A few minutes later, Appellant was placed in handcuffs.
             Courts determine whether a person is in custody for
      Miranda purposes…on a case-by-case basis with due regard to
      the particular facts involved. In this case, various factors support
      the conclusion that Appellant was not in custody [when he was
      asked about his drug use]. The traffic stop was brief: Only 15
      minutes elapsed from the time Appellant was stopped to the time
      Appellant was placed under arrest. Appellant was not physically
      restrained or placed in a patrol car….Police asked if Appellant was
      willing to perform field sobriety tests. The stop occurred on a
      public roadway. At no point did police display weapons to obtain
      Appellant’s compliance. Appellant was asked why he was in the
      area, whether he had used drugs, and was asked to perform field
      sobriety tests. Asking a “modest number of questions” and
      requesting that a suspect perform field sobriety tests does not
      amount to custodial interrogation.
            It is true…the officers took [Appellant’s] keys at the
      beginning of the stop. That does not mean, however, that
      Appellant was in custody. “[C]ustodial detention involves
      something more than mere exercise of control over the suspect’s
      freedom of movement.” [Commonwealth v. Douglass, 

 (Pa.Super. 1988)].


                                      - 22 -
J-A03013-23



Trial Court Opinion, filed 9/28/22, at 7-8 (citations to record omitted)

(quotation marks, quotation, and citations omitted).

         We agree with the trial court’s sound reasoning.8 Accordingly, we

conclude the trial court properly denied Appellant’s motion to suppress on this

basis.

         For all of the foregoing reasons, we affirm Appellant’s judgment of

sentence.

         Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2023




____________________________________________


8 Moreover, we agree with the trial court that, assuming, arguendo, the trial

court erred in failing to suppress Appellant’s statements regarding his drug
use, such error was harmless. “Even without Appellant’s admission of drug
use,…the Commonwealth’s [uncontradicted evidence overwhelmingly] proved
beyond a reasonable doubt that Appellant was guilty of [DUI].” Trial Court
Opinion, filed 9/28/22, at 9 n.9. See Commonwealth v. Mitchell, 

, 

 (2003) (holding that a reviewing court will find an error
harmless where the uncontradicted evidence of guilt is overwhelming, so that
by comparison the error is insignificant).

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