Com. v. Henry, J.
550 MDA 2016
| Pa. Super. Ct. | Oct 20, 2016Background
- At ~12:48 a.m., Trooper Jones observed Jennifer Henry make an abrupt swerve and then weaving, riding the fog line, and crossing the double yellow—behaviors he associated with impairment based on training and experience.
- Trooper Jones stopped Henry, smelled marijuana, observed glossy/bloodshot eyes and a green tongue, administered field sobriety tests (poor performance), and obtained consent to search the vehicle and chemical testing.
- Search of Henry’s purse produced drug paraphernalia, marijuana residue, and marijuana-laced cigarettes; blood tested positive for multiple controlled substances and marijuana.
- Henry was charged with multiple DUI counts and related offenses, moved to suppress the stop, and after a suppression hearing the trial court denied suppression, finding reasonable suspicion for the stop.
- Following a stipulated bench trial Henry was convicted; she was sentenced to an aggregate intermediate punishment term. Trial court denied her post-sentence motion. Counsel filed an Anders brief and petition to withdraw on appeal, asserting the appeal is frivolous.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Henry) | Held |
|---|---|---|---|
| Whether the stop required probable cause or only reasonable suspicion | Trooper’s observations of abrupt swerve, weaving, fog-line riding, and crossing double yellow provided specific and articulable facts supporting reasonable suspicion to stop and further investigate DUI | The stop should have required probable cause; trial court erred by applying reasonable suspicion instead of probable cause | Trial court properly applied reasonable suspicion; stop valid because further investigation was necessary based on observed driving behaviors |
| Whether the court erred in crediting officer testimony over his contemporaneous written report (weight/credibility) | Crediting the trooper’s live testimony was within the factfinder’s province; weight/credibility claims were not preserved and, in any event, do not shock the conscience | Trial court improperly credited the trooper’s trial testimony over his same-day written report that did not mention DUI | Claim not preserved (post-sentence motion challenged sufficiency, not weight). Even on merits, court’s credibility determination was within its discretion and not an abuse |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedural requirements when counsel seeks to withdraw on appeal as frivolous)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (state guidance on Anders-type brief and counsel withdrawal)
- Commonwealth v. Salter, 121 A.3d 987 (Pa. Super. 2015) (distinguishing when probable cause is required vs reasonable suspicion for vehicle stops)
- Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super. 2010) (en banc) (probable cause required when stop not necessary to investigate suspected Vehicle Code violation)
- Commonwealth v. Sands, 887 A.2d 261 (Pa. Super. 2005) (specific and articulable facts supporting reasonable suspicion for DUI stop)
- Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005) (notice requirements when counsel files Anders brief)