Com. v. Smith, C.

Opinion

J-S80015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

COLEMAN KEARY SMITH.

Appellant No. 184 MDA 2016

Appeal from the Judgment of Sentence January 6, 2016 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000664-2015

BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED DECEMBER 05, 2016

Coleman Keary Smith appeals from the judgment of sentence, entered

in the Court of Common Pleas of Franklin County, after being convicted of

one count each of Driving Under the Influence (DUI) – high rate of alcohol1

and DUI – general impairment.2 Smith was sentenced to 30 days to 6

months’ incarceration. After careful review, we affirm.

On appeal, Smith presents the following issue for our consideration:

Did the suppression court err[] in denying Appellant’s motion to suppress evidence when the arresting officer filed to administer and correctly score the horizontal gaze nystagmus [HGN] standard field sobriety test, falsified his police report, provided

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1 75 Pa.C.S. § 3802(b). 2 75 Pa.C.S. § 3802(a)(1). J-S80015-16

false testimony and cross examination and acknowledged he did not know how to administer the field sobriety test.3

Appellant’s Brief, at 4.

In essence, Smith attacks the trial court’s credibility determination

with regard to the testimony of his arresting officer, Trooper Hanko.

Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (“It is

within the suppression court's sole province as factfinder to pass on the

credibility of witnesses and the weight to be given to their testimony[; t]he

suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.”). Smith asserts that because the

trooper did not administer the HGN test according to the National Highway

Traffic Safety Student Manual and that he “falsified the police report and

[that] his testimony [was] intended to deceive,” we should reverse the

suppression court. Appellant’s Brief, at 9. We disagree.

Based on a totality of the circumstances, there was sufficient evidence

to support the trooper’s stop of Smith’s vehicle and his subsequent arrest for

suspected DUI. Trooper Hanko testified that he stopped Smith’s silver Ford

truck after he observed it cross the double-yellow center lines of the road

two times. N.T. Suppression Hearing, 12/7/15, at 11. Upon stopping

Smith’s vehicle, the trooper testified that Smith had difficulty locating his ____________________________________________

3 An appellate court does not reverse the suppression court's denial of an accused's motion to suppress if the factual findings and legal conclusions drawn therefrom by the suppression court are supported by the record. Commonwealth v. Bracey, 662 A.2d 1062 (Pa. 1995).

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driver’s license, slurred speech, bloodshot and glassy eyes, smelled of

alcohol, and admitted to drinking multiple beers prior to driving. Id. at 12,

19-21. Moreover, Trooper Hanko was trained in the detection of impaired

drivers, id. at 5-8, and, in his career, had stopped approximately 40 drivers

suspected to be under the influence, some of which led to DUI arrests. Id.

at 8-9.

After reviewing the parties’ briefs, relevant law and certified record on

appeal, we affirm Smith’s judgment of sentence based on the April 5, 2016,

opinion authored by the Honorable Carol L. Van Horn. See Commonwealth

v. Seguida, 985 A.2d 871, 879 (Pa. 2009) (types of evidence

Commonwealth may proffer in section 3802(a)(1) prosecution include, but

are not limited to, “offender's actions and behavior, including manner of

driving and ability to pass field sobriety tests; demeanor, including toward

the investigating officer; physical appearance, particularly bloodshot eyes

and other physical signs of intoxication; odor of alcohol, and slurred

speech”); see also Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa.

Super. 2011) (sustaining conviction for DUI where defendant failed to stop

at stop sign, smelled of alcohol, and failed four separate field sobriety tests).

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4 Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/5/2016

4 We instruct the parties to attach a copy of President Judge Van Horn’s opinion in the event of further proceedings in the matter.

-4- Circulated 11/10/2016 08:24 AM