Com. v. Verbeck, S. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
STEVEN LEONARD VERBECK, : No. 1947 MDA 2019
:
Appellant :
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).
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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).
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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.
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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,
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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.
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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.
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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
9 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.
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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.
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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
10On appeal, appellant abandoned the claim raised in his motion to suppress
the search of his motor vehicle was unconstitutional.
11 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:
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
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(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.
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Circulated 11/10/2020 03:02 PM