COMMONWEALTH OF PENNSYLVANIA v. WILLIAM A. MOULIS
No. 1674 WDA 2014
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED OCTOBER 30, 2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37; J-A23043-15; Appeal from the Judgment of Sentence September 3, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002584-2014
Appellant, William A. Moulis, appeals from the judgment of sentence entered in the Allegheny County Court of Common Pleas, following his bench trial convictions for driving under the influence of alcohol or a controlled substance (“DUI“), stop signs and yield signs, and careless driving.1 We affirm.
The relevant facts and procedural history of this case are as follows. On the morning of November 2, 2013, Lisa Jacobs called 911 to report an erratic driver. Ms. Jacobs informed the 911 dispatcher she had observed the driver of a tan/brown Chevy Cavalier sedan driving erratically, swerving, and failing to stop at multiple stop signs. Ms. Jacobs said the driver of the
Officer Eric Maga responded to the 911 dispatch and pulled over the vehicle Ms. Jacobs had described. Appellant was the driver of the vehicle and Mary Mattei, Appellant‘s girlfriend, was the passenger. When Officer Maga approached Appellant‘s vehicle, he noticed Appellant spoke very slowly and had pinpoint pupils. Appellant took longer than usual to produce his insurance card and failed to produce his driver‘s license and registration card the first time Officer Maga requested those documents, requiring the officer to ask a second time. Based on the 911 dispatch and Officer Maga‘s observations, the officer suspected Appellant might be under the influence of pills or narcotics. Officer Maga asked Appellant to exit the vehicle so the officer could perform field sobriety tests. Officer Maga initially conducted a Horizontal Gaze Nystagmus (“HGN“) test; Appellant displayed six out of six signs of impairment during this test. Officer Maga also administered a Portable Breath Test (“PBT“), which did not detect alcohol on Appellant‘s breath. Officer Maga began giving instructions for the walk-and-turn test thereafter, but due to the heavy flow of traffic and Officer Maga‘s observations that Appellant was unsteady on his feet, the officer decided for safety reasons to continue the field sobriety testing at the police station.
At the police station, Officer Maga conducted the walk-and-turn test
The Commonwealth charged Appellant with DUI and other summary offenses. On August 8, 2014, Appellant filed a suppression motion claiming, inter alia, Officer Maga lacked probable cause to arrest Appellant. Specifically, Appellant disputed that he failed the field sobriety tests and requested the Commonwealth to produce video footage from Officer Maga‘s police dashboard camera and video surveillance from the police station where Officer Maga had later conducted field sobriety tests. The court held a suppression hearing on August 11, 2014. At the suppression hearing, the Commonwealth presented testimony/evidence from Lisa Jacobs and Officer Maga. Ms. Jacobs testified about her observations of Appellant‘s erratic driving on the morning in question, which prompted her to call 911. Officer Maga testified about his observations of Appellant and his administration of the various field sobriety tests. Officer Maga also explained that the dashboard camera in his police cruiser had been disconnected and was non-functioning on the morning of November 2, 2013. Thus, Officer Maga maintained there was no video footage of Appellant‘s performance of the
The defense presented testimony from Ms. Mattei. Ms. Mattei‘s version of events directly contradicted the events as described by Ms. Jacobs and Officer Maga. Ms. Mattei testified that Ms. Jacobs was the person driving erratically, and Appellant only swerved to move out of Ms. Jacobs’ way. Ms. Mattei said Ms. Jacobs was “flying down the road” and almost caused a big accident. Additionally, Ms. Mattei thought Appellant successfully completed the HGN test. Ms. Mattei admitted she did not see Appellant perform the walk-and-turn test or one-leg stand test because she was seated in the lobby of the police station at that time, but Ms. Mattei maintained she saw video surveillance in the lobby. Ms. Mattei guessed that, if Officer Maga had conducted field sobriety tests at the police station, then there would be video footage of those tests. Ms. Mattei also indicated Appellant has a prescription for Xanax and Valium. At the conclusion оf the hearing, the court denied Appellant‘s suppression motion. The court expressly stated it found Ms. Mattei‘s testimony incredible.
The Commonwealth also presented testimony from Jennifer Janssen, an expert in forensic toxicology. Ms. Janssen testified that Appellant‘s blood results showed the presence of Xanax and Valium. Ms. Janssen explained Xanax can cause drowsiness, lightheadedness, and impaired coordination. Ms. Janssen stated Valium can cause sedation, muscle relaxation, and lethargy. Ms. Janssen also indicated that pinpoint pupils are more indicative of opiate use, which was not detected in Appellant‘s system. Nevertheless, Ms. Janssen explained that just because a drug is below the detection limit does not necessarily mean the individual did not consume that particular
At the conclusion of trial, the court found Appellant guilty of DUI, stop signs and yield signs, and careless driving. The court specifically said it deemed Ms. Jacobs’ testimony credible and Ms. Mattei‘s testimony incredible. On September 3, 2014, the court sentenced Appellant to time served plus six (6) months’ probation for DUI; the court imposed no further penalty for the summary offenses. Appellant timely filed a post-sentence motion on Monday, September 15, 2014, which the court denied the next day. Appellant timely filed a notice of appeal on October 14, 2014. On October 16, 2014, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to
Appellant raises the following issues for our review:
WHETHER THE [TRIAL] COURT ERRED IN REFUSING TO GRANT APPELLANT‘S MOTION TO SUPPRESS THE EVIDENCE OF THE ARREST FOR LACK OF PROBABLE CAUSE?
WHETHER APPELLANT‘S DUE PROCESS RIGHTS WERE VIOLATED BY THE COMMONWEALTH‘S FAILURE TO PRODUCE VIDEOTAPE TESTIMONY OF THE TRAFFIC STOP
AND SOBRIETY TESTS? WHETHER THE TRIAL COURT ERRED IN ARGUING THAT APPELLANT‘S CLAIMS RELATED TO SUFFICIENCY OF THE EVIDENCE AND WEIGHT OF THE EVIDENCE WERE WAIVED FOR REVIEW BY THIS COURT FOR FAILING TO PROVIDE A SUFFICIENTLY DETAILED [RULE] 1925(B) STATEMENT?
WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THERE WAS SUFFICIENT EVIDENCE ON THE RECORD TO SUPPORT APPELLANT‘S CONVICTION FOR DUI-CONTROLLED SUBSTANCE?
WHETHER THE VERDICT OF THE TRIAL COURT OF GUILTY FOR DUI-CONTROLLED SUBSTANCE IS AGAINST THE WEIGHT OF THE EVIDENCE?
(Appellant‘s Brief at xi).
“Our standard of review in addressing a challenge to a trial court‘s denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.” Commonwealth v. Williams, 941 A.2d 14, 26 (Pa.Super. 2008) (en banc) (quoting Commonwealth v. Jones, 874 A.2d 108, 115 (Pa.Super. 2005)).
[W]e may consider only the evidence of the prosecution 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 findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Williams, supra at 27 (quoting Jones, supra).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Anthony M.
Moreover, when examining a challenge to the sufficiency of evidence:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant‘s guilt may be resolved by the fаct-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Jones, supra at 120-21).
The Vehicle Code defines the offense of DUI, in relevant part, as follows:
§ 3802. Driving under influence of alcohol or controlled substance
* * *
(d) Controlled substances.—An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:
* * *
(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual‘s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cаnnot substitute its judgment for that of the finder of fact. Thus, we may only reverse the...verdict if it is so contrary to the evidence as to shock one‘s sense of justice.
Moreover, where the trial court has ruled on the weight claim below, an appellate court‘s role is not to consider the underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, 542 U.S. 939 (2004) (internal citations omitted).
Instantly, the Commonwealth presented the following testimony/evidence at trial: (1) Ms. Jacobs testified she was driving her children to a doctor‘s appointment on the morning of November 2, 2013, when she observed the drivеr of a nearby vehicle driving erratically; the driver failed to stop at multiple stop signs, swerved all over the road, drove across both lanes of traffic without signaling, and almost caused an accident; other drivers were honking their horns; Ms. Jacobs called 911 and described the vehicle and the driver‘s actions; (2) Officer Maga responded to the 911 dispatch and pulled over the vehicle Ms. Jacobs had described; Appellant was the driver of the vehicle and Ms. Mattei was the passenger; Appellant spoke very slowly and took longer than Officer Maga had expected to produce his insurance card; Appellant failed to comply with the officer‘s initiаl request to supply his driver‘s license and registration; Appellant had pinpoint pupils, consistent with the consumption of pills or narcotics; Officer Maga conducted a walk-and-turn test and one-leg stand test, both of which Appellant failed; a subsequent blood draw showed Appellant had Xanax and Valium in his system; Appellant admitted taking Xanax either the night
The defense offered the suppression testimony from Ms. Mattei. Ms. Mattei‘s version of events directly contradicted the events as described by Ms. Jacobs and Officer Maga. Ms. Mattei testified that Ms. Jacobs was the person driving erratically and Appellant only swerved to move out of Ms. Jacobs’ way. Ms. Mattei admitted she did not see Appellant perform the walk-and-turn test or one-leg stand test because she was in the lobby of the police station at that time. Ms. Mattei also testified that Appellant has a prescription for Xanax and Valium. The court expressly stated it found Ms. Jacobs’ testimony credible and Ms. Mattei‘s testimony incredible. Viewed in the light most favorable to the Commonwealth as verdict-winner, the evidence was sufficient to sustain Appellant‘s conviction for DUI. See
Judgment of sentence affirmed.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2015
COMMONWEALTH OF PENNSYLVANIA vs. WILLIAM A. MOULIS
CC No. 2014-02584
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CRIMINAL DIVISION
Mariani, J.
Circulated 10/19/2015 10:49 AM
This is a direct appeal wherein the defendant appеals the Judgment of Sentence of September 3, 2014 which became final when this Court denied defendant‘s post-sentencing motions on September 16, 2014. After a non-jury trial, the defendant was found guilty of driving under the influence of a controlled substance and various vehicle code offenses. Defendant was sentenced to a term of imprisonment of time served followed by a term of probation of six months. Defendant then filed this timely appeal.
On appeal, the defendant claims that this Court erred in denying his suppression motion generally and more specifically in that this Court rejected his claim that he was arrested without probable cause. Defendant also claims that he was denied due process when the Commonwealth did not turn over certain video evidence. Defendant also raises challenges based on the sufficiency and weight of the evidence. All claims fail.
Police officers are permitted to conduct a vehicle stop if the officer has reasonable suspicion to believe that a violation of the Motor Vehicle Code is occurring or has occurred. Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011). “To have reasonable suspicion, police officers need not personally observe the illegal or suspicious conduct, but may rely upon the information of third parties, including tips from citizens.” Commonwealth v. Swartz, 787 A.2d 1021, 1024 (Pa. Super. 2001) (en banc). “Indeed, identified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances, since a known informant places himself at risk of prosecution for filing a false claim if the tip is untrue, whereas an
The defendant‘s vehicle was stopped as a result of a 911 call from a concеrned motorist, Lisa Jacobs, whose identity was known to the 911 dispatcher. Ms. Jacobs relayed her observations that the defendant had been operating his vehicle in a reckless manner. Ms. Jacobs told the 911 dispatcher that she was driving on Ewings Mill Road in Robinson Township. While she was driving, the defendant‘s vehicle had quickly driven up to the left side of her vehicle and almost swerved into her vehicle. The defendant‘s vehicle quickly swerved away. She then observed the defendant‘s vehicle pass her and repeatedly swerve again across her lane and into oncoming traffic and almost drive off the road. She related that other vehicles were forced off the road due to the defendant‘s driving and they were honking their horns at him. She also explained that the defendant drove through a few stop signs. She then continued to her destination and called 911. Ms. Jacobs was able to describe the vehicle to the 911 dispatcher and she relayed all of her observations about the defendant‘s driving. Officer Eric Maga was dispatched to investigate the matter. He called Ms. Jacobs and she related her observations to him. Officer Maga quickly located the defendant‘s vehicle and initiated a traffic stop. Ms. Jacobs‘s information concerning the defendant‘s erratic driving clearly established reasonable suspicion that the defendant had violated the Motor Vehicle
Similarly, probable cause existed to arrest the defendant. Probable cause to arrest exists when a police officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver has been driving under the influence of alcohol or a controlled substance. Commonwealth v. Angel, 946 A.2d 115, 118 (Pa.Super. 2008). In this case, Officer Maga administered field sobriety tests to the defendant. Officer Maga testified that he administered the horizontal gaze nystagmus test, or eye test, and the results of that test disclosed that the defendant exhibited all six signs of impairment. The walk-and-turn test and the one-leg test were also administered. The defendant failed both of those tests as well. At the time of the defendant‘s arrest, Officer Maga was aware that the defendant had been driving in an erratic manner and he had failed three field sobriety tests.3 He clearly possessed the required knowledge that the defendant had been driving under the influence of a controlled substance. This Court believes this evidence was clearly sufficient to establish probable cause to arrest the defendant.
Under Pennsylvania discovery rules, a defendant may request the Commonwealth to produce inculpatory evidence that is relevant and the Commonwealth must produce such information provided it is within the possession of the Commonwealth. Commonwealth v. Dent, 837 A.2d 571, 585 (Pa.Super. 2003). However, where the evidence is equally accessible or inaccessible to both parties, a defendant cannot use the discovery rules to compel the Commonwealth to produce such evidenсe. Id. Moreover, unless a criminal defendant can show bad faith on the part of the Commonwealth, the Commonwealth is not accountable for the failure to preserve any potentially useful evidence and the failure to preserve such evidence does not constitute a denial of due process of law.” Commonwealth v. Feese, 79 A.3d 1101, 1108 (Pa.Super. 2013).
The evidence adduced during the suppression hearing indicated that the Commonwealth did not possess the materials requested by the defendant. Officer Maga testified that dashboard camera inside the police cruiser he was driving at the time of the arrest was never operational. He testified that the police cruiser had been placed in service in 2012 and that the dashboard camera never worked since that time. He also testified that he had no knowledge as to whether a video existed of the defendant performing field sobriety tests in the hall area of the police station. The Commonwealth
The defendant‘s final four issues relate to very general challenges to the sufficiency of the evidence and the weight of the evidence. Pennsylvania courts have explained that “a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all.” Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001); see also Commonwealth v. Seibert, 799 A.2d 54 (Pa. Super. 2002). In such circumstances, the vague issues raised on appeal are deemed waived. Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006). As set forth in Commonwealth v. Reeves, 907 A.2d 1, 2-3 (Pa. Super. 2006):
There is a common sense obligation to give the trial court notice as to what thе trial court should address in its Rule 1925(a) opinion. While there is a middle ground that counsel must travel to avoid having a Rule 1925(b) statement so vague that the trial judge cannot ascertain what issues should be discussed in the Rule 1925(a) opinion or so verbose and lengthy that it frustrates the ability of the trial judge to hone in on the issues actually being presented to the appellate court, see Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004), that is not an onerous burden to place on counsel. It only requires using a little common sense.
Germane to this case, general claims of insufficiency of evidence or weight of evidence that do not articulate the specific elements that an appellant deems weren‘t established at trial are too vague and result in a waiver of the issues raised on appeal. See Commonwealth v. Williams, 959 A.2d 1252, 1257-1258 (Pa. Super. 2008). In Williams, the Superior Court was evaluating a 1925(b) statement that posed the following question:
Was there not insufficient evidence to sustain the charges of Murder, Robbery, VUFA no license, and VUFA on the streets. [sic] Thus, denying petitioner due process of law?
The Superior Court held that this statement was too vague and, therefore, the issue of sufficiency was waived on appeal:
Similarly, Appellant herein failed to articulate the specific
Williams, 959 A.2d at 1257-1258; see also Commonwealth v. Flores, 921 A.2d 517, 522-523 (Pa. Super. 2007) (a 1925(b) statement stating that “[t]he evidence presented was insufficient to prove beyond a reasonable doubt that the appellant committed the above-captioned offenses” and that “the testimony of Sondra Coble, Julienne Briggs, and Atlas Simpson was insufficient to prove beyond a reasonable doubt that the appellant committed the above-captioned offenses” did not properly preserve a sufficiency of the evidence claim for appellate review.); Reeves, 907 A.2d at 3 (a Rule 1925(b) statement that stated, “[t]he evidence was insufficient to support the verdict on the charge of securing execution of documents by deception” was insufficient and the issue was, therefore, waived.); Seibert, 799 A.2d 54 (Appellant‘s weight of the evidence issue waived for having filed a vague 1925(b) statement claiming only that “the verdict of the jury was against the weight of the credible evidence as to all of the charges.“)
In this case, the defendant‘s final four claims in his 1925(b) statement fall short of what is required in such a statemеnt. The defendant makes bald allegations that the evidence was insufficient to convict him and that the verdict was against the weight of the evidence. He also makes two allegations that his guilt was not proven beyond a reasonable doubt. He claims that the trial court erred in finding him guilty beyond a
For the foregoing reasons, the Judgment of Sentence should be affirmed.
By the Court:
Anthony Mariani, J.
Date: December 1, 2014