COMMONWEALTH OF PENNSYLVANIA v. STEVEN LEONARD VERBECK
No. 1947 MDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED APRIL 09, 2021
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.
Appeal from the Judgment of Sentence Entered November 1, 2019
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0002013-2018
MEMORANDUM BY PANELLA, P.J.:
Steven Leonard Verbeck appeals from the November 1, 2019 judgment of sentence entered by the Court of Common Pleas of Centre County, which followed his non-jury trial conviction of four separate counts of driving under the influence (“DUI“) controlled substance, one count of possession of a small amount of marijuana, DUI general impairment, possession of drug paraphernalia, failing to yield right, driving on roadways laned for traffic, careless driving, and failure to use a safety belt.1 The court sentenced Verbeck to five years of intermediate punishment, with 120 days to be served on in-home detention. After thorough review, we vacate Verbeck‘s judgment of sentence pursuant to Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super.
In summary, while on vehicle patrol, two Pennsylvania State Police troopers observed two vehicles being driven in the opposite direction. The two troopers noticed that Verbeck‘s vehicle, the second of the two, entered their lane of travel by crossing well over the double-yellow line. As Verbeck‘s vehicle approached and then passed the trоopers’ vehicle, it straddled the double-yellow line.
Immediately thereafter, the troopers performed a U-turn and pursued Verbeck‘s vehicle. The troopers then initiated their emergency lights, which resulted in a traffic stop of Verbeck‘s vehicle. During the stop, the troopers smelled both marijuana and alcohol emanating both from Verbeck‘s vehicle and Verbeck, himself. Ultimately, Verbeck failed the standardized field sobriety tests he was asked to perform, tested positive for alcohol via a portable breathalyzer, and marijuana, among other items, was found in Verbeck‘s vehicle.
Verbeck was then taken into custody. Verbeck was transported first to the hospital for a blood draw and then to the county jail for fingerprinting. Prior to the blood draw, the troopers apprised Verbeck, verbatim, of the language contained in Form DL-26B and indicated that it was Verbeck‘s decision whether tо consent to a blood draw. Verbeck verbally consented to a blood draw and signed Form DL-26B.
Verbeck filed a motion to suppress, which was denied by the suppression
On appeal, Verbeck challenges:
- Whether the arresting officer had probable cause to effectuate a traffic stop.
- Whether Verbeck‘s consent to having his blood drawn was unknowing, unintelligent, and involuntary.
- Whether the sentencing cоurt erroneously treated Verbeck‘s prior acceptance of the Accelerated Rehabilitative Disposition (“ARD“) Program as a prior offense for sentencing purposes.
See Appellant‘s Brief, at 14; Appellant‘s Supplemental Brief, at 4.
Verbeck‘s first two issues inherently deal with the dеnial of his motion to suppress, as relief on either claim would eliminate much, if not all, of the evidence employed against him at his non-jury trial. Verbeck asserts that the state troopers did not have probable cause to stop his vehicle and also avers that he did not voluntarily submit to the blood drаw taken at the police station.
Our Court‘s standard of review for a suppression issue is deferential to the suppression court‘s findings of fact, but not its conclusions of law:
[We are] 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, the appellate court is bound by those 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 аre subject to plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (internal citations omitted).
Preliminarily, we note the thorough and responsive nature of the suppression court‘s opinion. More specifically, the suppression court laid out, at length, its findings of fact. See Suppression Court Opinion, 6/25/19, at 2-5. Those factual determinations included an implicit beliеf in the troopers’ testimonies as they described the events on the day Verbeck was arrested, which is reflected in the suppression court‘s ultimate conclusion that the troopers had probable cause to effectuate a vehicle stop. See id., at 10.
The troopers believed thаt Verbeck had violated two provisions of Pennsylvania‘s Motor Vehicle Code:
To controvert the troopers’ testimonies, however, Verbeck asserts that the dashcam video recorder affixed to the troopers’ vehicle refutes the testimonial evidence рresented. In fact, Verbeck believes “the video evidence wholly contradicts Trooper Trate and Trooper Ammerman‘s testimony about
After an independent and intensive review of the recording, we find no objectively determinative dissimilarities between the troopers’ testimonies and the events as depicted on video. At most, given the grainy and nighttime nature of the footage and the fact that the video shows two separate oncoming vehicles, the recording is inconclusive on whether Verbeck‘s vehicle entered into the troopers’ lane. However, what can be discerned is that consistent with the troopers’ testimonies, Verbeck‘s vehicle travels along the double-yellow line as his vehicle passes. See Dash Camera Recording; Suppression Hearing N.T., 3/25/19, at 22, 43-44.
As such, we are left with a record that does not contradict the suppression court‘s factual findings. We, as an appellate court, cannot upset the credibility determinations of the suppression court, “within whose sole province it is tо pass on the credibility of witnesses and the weight to be given their testimony.” Commonwealth v. Poplawski, 130 A.3d 697, 711 (Pa. 2015). Based on the troopers’ testimonies, which both reflected that Verbeck‘s vehicle entered into their opposing lane of travel, we agree that they had probable cause to stop Verbeck‘s vehicle based оn at least one violation of Pennsylvania‘s Motor Vehicle Code.
Moreover, while Verbeck argues in the alternative that any purported vehicular violation was “minor and momentary,” Appellant‘s Brief, at 29, the
Accordingly, given the existence of probable cause, the traffic stop of Verbeck‘s vehicle was legal, and he is due no relief on this issue.
As to Verbeck‘s claims that his consent to a blood draw was not knowing, intelligent, and voluntary and that, as an ancillary matter, the restoration fee provision in Form DL-26B is a violation of the United States Supreme Court‘s holding in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (establishing that motorists may refuse to submit to warrantless blood tests, but that they could still face civil, rather than criminal, penalties if refused), they, too, are unavailing.
Furthermore, while we recognize the general importance of driving, we find there to be no Birchfield violation in conjunction with the text of Form DL-26B. Verbeck cites to Shoul v. Bureau of Driver Licensing, 173 A.3d 669 (Pa. 2017), for the proposition that payment of up to two-thousand dollars
Additionally, while Verbeck repeatedly highlights the mаximum extent of the license reinstatement fee, see, e.g, Appellant‘s Brief, at 46 (Verbeck “was threatened with enhanced criminal punishment in the form of a $2,000 restoration fee (fine) if he exercised his constitutional right to refuse a warrantless blood draw“), we note that the two-thousand dollar amount is the absolute most one would have to pay if he or she were to seek reinstatement after refusing a warrantless blood draw. Further, while suspension of driving privileges is certainly a significant imposition on the lifestyle of a person, there is no legal basis upon which to conclude that it is an absolute certainty that Verbeck will decide to have his license reinstated. As such, we conclude that Verbeck has failed to convince us that the license restoration fee is the functional equivalent to a criminal fine.
In his final issue, Verbeck complains thаt the sentencing court erroneously treated his prior acceptance of ARD as a prior offense for sentencing purposes, ultimately subjecting him to an illegal sentence. Verbeck indicates that his prior acceptance of ARD is a “fact” that enhanced his sentence, which, pursuant to Alleyne v. United States, 570 U.S. 99 (2013), must have therefore been found beyond a reasonable doubt.
Not long ago, our Court determined in Commonwealth v. Chichkin that
Here, by utilizing his prior acceptance of ARD under
While the Commonwealth goes to great lengths to indicate why the Chichkin decision was incorrectly decided, we are bound by the prior panel‘s determination in that matter until it is overturned by an en banc panel of this Court or by our Supreme Court. See Commonwealth v. Karash, 175 A.3d 306, 307 (Pa. Super. 2017); see also Commonwealth v. Morris, 958 A.2d 569, 581 n.2 (Pa. Super. 2008) (en banc) (“It is well-settled that this Court, sitting en banc, may overrule the decision of a three-judge panel of this Court).
Judgment of sentence vacated. Remanded for resentencing consistent with this memorandum. Jurisdiction relinquished.
President Judge Emeritus Bender joins the memorandum.
President Judge Emeritus Fоrd Elliott did not participate in the consideration or decision of this case.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/09/2021