Com. v. Rute, B.

• Court: Superior Court of Pennsylvania
• Decided: December 22, 2022
• Docket: 1257 MDA 2021
• Status: Unpublished

Opinion

J-A27003-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRYON GERALD RUTE : : Appellant : No. 1257 MDA 2021

Appeal from the Judgment of Sentence Entered September 2, 2021 In the Court of Common Pleas of Union County Criminal Division at No(s): CP-60-CR-0000031-2019

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 22, 2022

Appellant, Bryon Gerald Rute, appeals from the judgment of sentence

entered in the Union County Court of Common Pleas following his jury

conviction of one count of DUI, graded as a first-degree misdemeanor. After

careful review, we affirm.

The relevant facts and procedural history are as follows. On August 24,

2018, the Mifflinburg Borough Police Department, along with the Buffalo Valley

Regional and Shamokin Dam Police Departments, and the Union and Snyder

County Sheriff’s Offices, established and conducted a DUI checkpoint on State

Road 45 in Mifflinburg Borough, Union County.

At approximately 10:41 PM, Appellant drove his vehicle into the

checkpoint. There he encountered Mifflinburg Borough Police Officer Mark

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* Retired Senior Judge assigned to the Superior Court. J-A27003-22

Bailey. As Appellant stopped at the checkpoint, Officer Bailey observed

Appellant’s driver’s side window partially open and cigarette smoke billowing

from it. Both Appellant, who Officer Bailey knew, and his passenger had

freshly lit cigarettes and the smell of cigarette smoke was “overwhelming.”1

Officer Bailey noticed that Appellant was squinting, that he stared straight

ahead, did not turn his head to look at Office Bailey, and did not make eye

contact. Appellant was initially not verbally responsive to Officer Bailey and

ultimately “spoke very little if at all” during their interaction.2 Appellant’s

passenger, however, explained to Officer Bailey that Appellant had picked him

up at a local bar because the passenger was too intoxicated to drive.

Officer Bailey requested Appellant’s driver’s license, registration, and

proof of insurance. Appellant “fumbled through” his wallet to obtain the

requested documents, which he ultimately did not provide in full.3

Officer Bailey concluded, based on these facts, that he had reasonable

suspicion that Appellant had been driving while intoxicated and ordered

Appellant out of his car to submit to field sobriety testing. Following the field

sobriety testing, Appellant consented to a blood draw which indicated that

Appellant had been driving while intoxicated. The Commonwealth

subsequently charged Appellant with two counts of DUI.

1 N.T. Suppression Hr’g, 6/19/20, at 19.

2 Id. at 19-20.

3 Id.

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On May 29, 2019, Appellant filed an Omnibus Pre-Trial Motion4 seeking

to suppress the results of the blood draw. Appellant asserted that the

Mifflinburg Borough Police Department failed to comply with Section

8953(a)(3) of the Municipal Police Jurisdiction Act and with the

Tarbert/Blouse5 guidelines when conducting the DUI checkpoint and that

Officer Bailey lacked reasonable suspicion that Appellant had been driving

under the influence.

On June 19, 2020, the trial court held a hearing on Appellant’s motion

at which the Commonwealth presented the testimony of, inter alia, Officer

Bailey. Officer Bailey’s testimony established the above facts. Further, Officer

Bailey summarized the basis for his conclusion that Appellant was exhibiting

“signs of intoxication, impairment” as follows:

The squinted eyes, the freshly lit cigarette is frequently used as a–to cover the odor of the alcoholic beverage. I have been a police officer for 26 years, it’s a common occurrence. The window partially rolled down, the staring straight ahead, the squinted eyes, it all-it was all signs to me of impairment. The - basically when they stare straight ahead, they don’t want to engage the officer.

N.T. Suppression Hr’g, 6/19/20, at 15-16.

On July 31, 2020, the suppression court denied Appellant’s motion to

suppress. The court found that the DUI checkpoint conducted by the

Mifflinburg Borough Police Department complied with Section 8953(a)(3) of ____________________________________________

4 On October 17, 2019, Appellant filed a supplement to the pre-trial motion.

5Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987); Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).

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the Municipal Police Jurisdiction Act6 and with the Tarbert/Blouse guidelines.

The court further found that Officer Bailey had reasonable suspicion of criminal

activity when he directed Appellant to exit his vehicle prior to the

administration of field sobriety tests.

On April 23, 2021, the jury convicted Appellant of the above charge. On

September 2, 2021, the trial court sentenced Appellant to serve five years of

probation with restrictive conditions.

This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Whether the trial court erred in denying [Appellant’s] Motion to Suppress because the Tarbert/Blouse checkpoint factors were not complied with including removing [Appellant] from his vehicle without probable cause/reasonable suspicion to believe [Appellant] was violating the law?

2. Whether the trial court erred in denying [Appellant’s] Motion to Suppress because [Appellant] was detained by being asked to exit his vehicle for further testing at the checkpoint without reasonable suspicion to further any detention?

Appellant’s Brief at 6.7

6 42 Pa.C.S. § 8953.

7Although Appellant has raised two issues on appeal, he acknowledges in his brief that “both arguments are essentially the same issue,” i.e., whether Officer Bailey had reasonable suspicion to order Appellant from his car to undergo field sobriety testing. See Appellant’s Brief at 11 n.2. Accordingly, we confine our review to that issue alone and do not address whether the suppression court properly found that the DUI checkpoint complied with the Tarbert/Blouse checkpoint factors.

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A.

When we review the denial of a motion to suppress, “we are limited to

considering 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.” Commonwealth v. Yorgey, 188 A.3d 1190, 1198 (Pa.

Super. 2018) (en banc) (citation and internal quotation marks omitted). When

the testimony and other evidence support the trial court’s findings of fact, this

Court is bound by them and we “may reverse only if the court erred in reaching

its legal conclusions based upon the facts.” Id. (citation omitted). “Moreover,

it is within the lower court’s province to pass on the credibility of witnesses

and determine the weight to be given to their testimony.” Commonwealth

v. McCoy, 154 A.3d 813, 816 (Pa. Super. 2017). This Court will not disturb

a suppression court’s credibility determination absent a clear and manifest

error. Commonwealth v. Camacho, 625 A.2d 1242, 1245 (Pa. Super.

1993).

“The scope of review from a suppression ruling is limited to the

evidentiary record created at the suppression hearing.” Commonwealth v.

Neal, 151 A.3d 1068, 1071 (Pa. Super. 2016). Importantly, “[o]nce a motion

to suppress evidence has been filed, it is the Commonwealth’s burden to

prove, by a preponderance of the evidence, that the challenged evidence was

not obtained in violation of the defendant’s rights.” Commonwealth v.

Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012) (citing Pa.R.Crim.P. 581(H)).

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Appellant challenges the trial court’s conclusion that Officer Bailey had

reasonable suspicion to order Appellant from his car. In determining whether

an officer’s stop of a defendant was supported by reasonable suspicion, the

court must consider the totality of the circumstances and give due weight to

the reasonable inferences the officer drew from the facts based upon his

experience. Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009)

(en banc). “[E]ven a combination of innocent facts, when taken together,

may warrant further investigation by the police officer.” Id. (citations

omitted).

B.

Appellant claims the suppression court erred as a matter of law in

determining that Officer Bailey had the requisite reasonable suspicion to order

Appellant from his car to undergo field sobriety testing. Appellant’s Brief at

11-16. He argues, in particular, that Officer Bailey did not provide specific

articulable facts justifying Appellant’s removal from his vehicle. Id. at 14-15.

According to Appellant, Officer Bailey articulated only that, prior to ordering

Appellant from his vehicle: (1) Officer Bailey knew Appellant; (2) Appellant

was smoking; (3) Appellant was squinting and staring forward; and (4)

Appellant’s passenger told Officer Bailey that Appellant had picked him up

from a bar. Appellant concludes that these facts do not justify Officer Bailey’s

removal of Appellant from Appellant’s vehicle and speculates that Officer

Bailey instead detained him “in order for law enforcement to satisfy its burden

of developing reasonable suspicion.” Id. at 14.

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After considering the facts articulated by Officer Bailey as set forth

above and all reasonable inferences therefrom, as well as Officer Bailey’s

experience, the suppression court concluded that Officer Bailey’s suspicion

that Appellant may have been intoxicated was reasonable.

Following our review, we conclude that the record supports the

suppression court’s findings of fact and the trial court properly denied

Appellant’s motion to suppress. The totality of the evidence presented at the

suppression hearing—namely Officer Bailey’s testimony regarding Appellant’s

evasive demeanor and Officer Bailey’s experience with drivers’ use of cigarette

smoke to disguise the odor of alcoholic beverages, coupled with the

reasonable inferences of intoxication Officer Bailey drew from those facts in

light of his many years of experience—was sufficient to justify Officer Bailey’s

reasonable suspicion that Appellant was engaging in criminal activity.

Appellant’s claim, thus, fails.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/22/2022

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