Com. v. Arroyo, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL ANTONIO ARROYO, :
:
Appellant : No. 1863 EDA 2019
Appeal from the Judgment of Sentence Entered June 3, 2019
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002456-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: May 14, 2020
Angel Antonio Arroyo (“Arroyo”) appeals from the judgment of sentence
imposed following his convictions of two counts of driving under the influence
of alcohol (“DUI”), and one count each of driving within single lane and
careless driving.1 We affirm.
On February 11, 2018, at approximately 2:40 a.m., Pennsylvania State
Troopers Blake Shortall (“Trooper Shortall”) and Raphael Padilla (“Trooper
Padilla”), in full uniform and operating a marked police vehicle, were patrolling
State Route 378 (“SR-378”) South in Bethlehem City, Lehigh County,
Pennsylvania. Trooper Shortall observed a black sedan traveling in the right
lane of SR-378. After the black sedan passed the Catasauqua Road on/off
ramp, the driver’s side tires completely crossed over the center yellow dotted
line. Within one mile of travel, Trooper Shortall observed the passenger side
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1 75 Pa.C.S.A. §§ 3802(a)(1), (a)(2); 3309(1); 3714(a).
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tires completely cross over the fog line, and the driver’s side tires cross the
center line a second time.
Trooper Shortall initiated a traffic stop based on the observed Motor
Vehicle Code violations. Trooper Shortall approached the driver side window
of the black sedan, and asked the driver, later identified as Arroyo, for his
driver’s license, vehicle registration, and proof of insurance. While speaking
with Arroyo, Trooper Shortall smelled the odor of alcohol on Arroyo’s breath.
Trooper Shortall additionally observed that Arroyo’s eyes were bloodshot and
glassy, and that Arroyo’s speech was slurred. Based on his observations,
Trooper Shortall asked Arroyo to exit the vehicle and perform field sobriety
tests (“FSTs”). After conducting the FSTs, Trooper Shortall concluded that
Arroyo was driving while impaired and took Arroyo into custody for DUI.
Arroyo was transported to the Lehigh County DUI Booking Center for a
blood draw. During the trip, Arroyo told Trooper Shortall that he drank earlier
that night because he had a “rough couple of weeks.” Once at the Lehigh
County DUI Booking Center, Arroyo consented to have his blood drawn and
tested. Arroyo’s blood was drawn at 3:40 a.m. on February 11, 2018, and
sealed. Arroyo’s blood was subsequently transported to Health Network
Laboratories, where it tested positive for a blood alcohol content of 0.09%.
The Commonwealth charged Arroyo with the above-mentioned offenses.
Arroyo filed an Omnibus Pre-trial Motion, seeking to suppress the vehicle stop
and all evidence flowing from the stop as fruits of the poisonous tree.
Specifically, Arroyo argued that he did not cause any safety risk to other
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drivers on the road; thus, Trooper Shortall lacked the requisite probable cause
to conduct a vehicle stop for a violation of driving within single lane. Following
a suppression hearing, the trial court denied the Motion.
After a bench trial, the trial court found Arroyo guilty of two counts of
DUI, and one count each of driving within single lane and careless driving. On
June 3, 2019, the trial court sentenced Arroyo to an aggregated term of 6
months of probation, plus fines and costs.2 Arroyo filed a timely Notice of
Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors
Complained of on Appeal.
Arroyo now presents the following issues for our review:
1. Specific and articulable statements need to be made by law
enforcement to justify a stop based on reasonable suspicion.
Here, Arroyo was pulled over for violating section 3309 of the
Motor Vehicle Code. [Section] 3309 requires that the driver
remain in a single lane until movement can be made with safety.
At the suppression hearing, no statements as to safety were
made. When safety is a key component of the statute and no
mention is made at the suppression hearing, are there specific and
articulable facts to justify a stop?
2. Whether the trial court’s verdict of guilt as to DUI[] was against
the weight of the evidence where the officer was unable to link
any observations of impaired driving to Arroyo and the
Commonwealth’s evidence did not establish that Arroyo’s mental
and physical faculties were impaired such that he could not safely
operate a motor vehicle[?]
Brief for Appellant at 1 (emphasis omitted).
In his first claim, Arroyo argues that the trial court erred in denying his
Omnibus Pre-trial Motion because Trooper Shortall lacked probable cause to
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2 Arroyo’s DUI convictions merged for sentencing purposes.
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conduct a vehicle stop. Id. at 10. Arroyo contends that the Commonwealth
only presented evidence of “erratic driving,” but did not present evidence that
Arroyo was driving in an “unsafe manner.” Id. at 17. Arroyo further asserts
that there was no nearby property or persons that were endangered by his
driving. Id. at 19.
We adhere to the following standard of review:
We may consider only the Commonwealth’s evidence 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 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. An appellate court, of course, is not bound
by the suppression court’s conclusions of law.
Commonwealth v. Hampton, 204 A.3d 452, 456 (Pa. Super. 2019).
Probable cause is required to effectuate a traffic stop based on a
suspected violation of the Motor Vehicle Code, including driving within single
lane.3 Commonwealth v. Feczko, 10 A.3d 1285, 1288 (Pa. Super. 2010).
To satisfy this standard, an officer must be able to “articulate specific facts
possessed [] at the time of the questioned stop, which would provide probable
cause to believe that the vehicle or the driver was in violation of some
provision of the [Motor Vehicle] Code.” Id. at 1291. Such an inquiry must
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3 Section 3309 of the Motor Vehicle Code provides that “[a] vehicle shall be
driven as nearly as practicable entirely within a single lane and shall not be
moved from the lane until the driver has first ascertained that the movement
can be made with safety.” 75 Pa.C.S.A. § 3309(1).
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take into account the totality of the circumstances. Commonwealth v.
Delvalle, 74 A.3d 1081, 1085 (Pa. Super. 2013).
Here, in its Opinion, the trial court found that Arroyo completely crossed
over the center and fog lines three times, and thus, violated the Motor Vehicle
Code, driving within single lane. Trial Court Opinion, 7/30/19, at 10-11.
Further, the trial court reasoned that because Arroyo had failed to maintain
his lane of travel, Trooper Shortall had the requisite probable cause to conduct
a vehicle stop. Id. at 11.
Testimony at the suppression hearing established that Trooper Shortall
was patrolling SR-378 South at approximately 2:40 a.m. N.T. (Suppression),
12/14/18, at 4-5. Trooper Shortall observed a black sedan, driven by Arroyo,
completely cross both the center and fog lines three separate times. See id.
at 5, 15-18. Trooper Shortall testified that he first observed Arroyo cross from
the right lane into the left lane near the area of the Catasauqua ramp. Id. at
5. This portion of SR-378 South is a two-lane highway which has oncoming
lanes divided by a grassy median. Id. at 16. Arroyo then crossed the fog line
for approximately two to three seconds. Id. at 17. Trooper Shortall further
testified that Arroyo crossed the center line for a second time and that there
was another vehicle approximately three car-lengths ahead of Arroyo at this
time. Id. at 16, 18. After Trooper Shortall observed Arroyo cross the center
and fog lines three separate times within one mile of travel, he conducted a
traffic stop for a violation of driving within single lane. See id. at 5, 15-18.
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Our review confirms that the traffic stop, based on an observed violation
of section 3309, was supported by probable cause. See 75 Pa.C.S.A. §
3309(1); see also Feczko, 10 A.3d at 1292 (finding that police had probable
cause to conduct a traffic stop for a violation of driving within single lane where
the driver of a vehicle was “weaving within his lane and crossed out of his lane
of travel on numerous occasions[]” and, that the driver had created a safety
hazard where, despite other vehicles not needing to take evasive action, there
were vehicles in the lane adjacent to the defendant); Commonwealth v.
Slonaker, 795 A.2d 397, 401 (Pa. Super. 2002) (stating that the trooper had
probable cause to conduct a traffic stop for a violation of driving within single
lane where the defendant’s vehicle crossed over the fog line on three separate
occasions). Given the totality of the circumstances, we conclude that the
evidence of record supports the suppression court’s factual findings, and its
legal conclusions are sound. See Hampton, supra. Therefore, we cannot
grant Arroyo relief on this claim.
In his second issue, Arroyo contends that the trial court’s verdict was
against the weight of the evidence.4 See Brief for Appellant at 20. Arroyo
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4 In his Brief, Arroyo appears to conflate the issues of sufficiency and weight.
To the extent that Arroyo raises a sufficiency claim, such claim is waived, as
Arroyo failed to a raise a sufficiency challenge in his Statement of Questions
Involved. See Pa.R.A.P. 2116(a) (providing that “[n]o question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”); see also Commonwealth v. Harris, 979 A.2d 387(Pa. Super. 2009) (stating that issues raised on appeal must be included in
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asserts that the Commonwealth did not establish that Arroyo was impaired to
the point that he could not safely operate a motor vehicle. Id.Initially, we observe that Arroyo did not assert that the trial court’s
verdict was against weight of the evidence in a post-sentence motion or orally
before the trial court. See Pa.R.Crim.P. 607(A) (providing that “[a] claim that
the verdict was against the weight of the evidence shall be raised with the trial
judge in a motion for a new trial.”); see also Commonwealth v. Gaskins,
692 A.2d 224, 228 (Pa. Super. 1997) (explaining that “[a]s a general rule,
weight of the evidence claims must first be posed to the trial court and cannot
be considered for the first time on appeal.”). Additionally, Arroyo did not
include the weight claim in his Concise Statement. See Pa.R.A.P. 1925(b)(4)
(providing that issues not included in the concise statement are waived); see
also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (stating that
an appellant’s concise statement must properly specify the error to be
addressed on appeal and that issues not included in the concise statement are
generally waived). Therefore, Arroyo’s weight claim is waived.
Judgment of sentence affirmed.
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the statement of questions involved in the appellant’s brief). Even if Arroyo
had properly raised this claim, we would conclude that Arroyo is not entitled
to relief for the reasons set forth by the trial court. See Trial Court Opinion,
7/30/19, at 2-7.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/20
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