J-S56038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEREMIAH A. SELVEY,

Appellant No. 810 MDA 2015

Appeal from the Judgment of Sentence April 29, 2015

in the Court of Common Pleas of Franklin County

Criminal Division at No.: CP-28-CR-0000178-2013

BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 06, 2015

Appellant, Jeremiah A. Selvey, appeals from the judgment of sentence 

entered on April 29, 2015, following his conviction of three counts of driving 

under the influence (DUI).1 On appeal, Appellant challenges the denial of his 

motion to suppress. For the reasons discussed below, we affirm.

We take the underlying facts and procedural history in this matter 

from the trial court’s opinion of February 16, 2015, and our independent 

review of the certified record.

Testimony was taken at the suppression hearing on 

December 26, 2013. At the hearing the arresting officer, Officer 

Matthew Lynch of the Chambersburg Police Department, was the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(d)(1)(i), (ii), and (d)(2). 
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sole witness to testify. Officer Lynch testified that he has 

completed numerous training courses relating to the detection of 

impairment including: Drug Recognition School; Field 

Coordination; Drug Recognition Expert School; Standardized 

Field Sobriety Testing Instructor Course; Advance Roadside 

Impaired Driving Enforcement Seminar; and Standardized Field 

Sobriety Testing Training.

The salient facts are as follows. On October 14, 2012 at 

around 1:09 a.m., Officer Lynch observed [Appellant’s] vehicle 

being driven in the area of Hood Street very slowly in what he 

believed to be an overly cautious manner. Officer Lynch testified 

that there were only a handful of cars in the area and at that 

time of day [and in that area,] there tends to be more impaired 

drivers on the road. Officer Lynch followed [Appellant] for a 

short time and did not observe [him] commit any traffic 

violations. Shortly thereafter Officer Lynch conducted a vehicle 

stop after confirming that the registration on the vehicle was 

suspended. Initially Officer Lynch noticed [Appellant] stopped 

his vehicle in the middle of the road even though there was 

room on the side of the road for [him] to stop. [After remaining 

in the middle of the road for several seconds, Appellant pulled 

his car over to the right side of the road.] Officer Lynch then 

made contact with [Appellant], standing less than an arm’s 

length away. Officer Lynch immediately smelled alcohol 

emanating from the vehicle. Officer Lynch noticed [Appellant’s] 

eyes were glassy and he had reddened conjunctiva, i.e., pinkeye 

[a known side effect of marijuana use]. Officer Lynch testified 

that when asking [Appellant] questions it seemed as though he 

had a hearing problem or that he did not comprehend because 

he did not respond at normal speed. Officer Lynch further 

testified that when he asked [Appellant] for the car registration, 

[he] slowly and lethargically sifted through his papers. 

Officer Lynch then requested that [Appellant] alight from 

his vehicle to perform field sobriety tests. [Appellant] was asked 

three times to step out of the vehicle before he responded. The 

first test that [Appellant] performed was the Horizontal Gaze 

Nystagmus (“HGN”) Test. Officer Lynch observed no HGN 

although he testified that HGN is generally activated by alcohol. 

During the HGN Test [Appellant] did show a lack of convergence 

which indicated recent cannabis usage according to Officer 

Lynch. [Appellant] also performed the Romberg Balance Test 

where he estimated the passage of 30 seconds in 12 seconds. 
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Officer Lynch also noticed [he] had body [and eye] tremors. 

Officer Lynch noticed other signs of recent cannabis [usage] 

such as dilated pupils, green discoloration of the tongue; and 

[Appellant’s] heart rate was abnormally high at 136 beats per 

minute. When asked when he last smoked [cannabis, Appellant] 

responded, “60 to 90 days ago.” In Officer Lynch’s opinion 

according to his experience, training and education, [Appellant] 

showed several signs that he was incapable of safe driving.

(Trial Court Opinion, 2/16/15, at 1-3). 

Officer Lynch arrested Appellant and transported him to Chambersburg 

Hospital for a blood draw. (See N.T. Suppression Hearing, 12/26/13, at 25). 

Appellant’s blood tested positive for marijuana use. (See id. at 26). On 

March 4, 2013, the Commonwealth filed a criminal information charging 

Appellant with the above-mentioned offenses. On May 1, 2013, Appellant 

filed a motion to suppress. The trial court held a hearing on Appellant’s 

motion on December 26, 2013. On February 14, 2014, the trial court denied 

Appellant’s motion to suppress.

On September 11, 2014, the trial court issued an order memorializing 

the parties’ agreement to a non-jury trial. They also agreed to the 

admittance of the blood tests results, and that the only witnesses testifying 

would be Officer Lynch and possibly Appellant. On October 23, 2014, the 

trial court issued a second order stating that, at the time of trial, the parties 

agreed that the trial court could decide Appellant’s guilt or innocence based 

upon the transcript of the testimony from the suppression hearing. On 

February 16, 2015, the trial court found Appellant guilty of the abovementioned charges. On April 29, 2015, the trial court sentenced Appellant 
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to a term of incarceration of not less than two nor more than six months. 

Appellant did not file any post-trial motions.

On May 11, 2015, Appellant filed a timely notice of appeal. On May 

12, 2015, the trial court directed Appellant to file a concise statement of 

errors complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed his 

timely Rule 1925(b) statement on May 20, 2015. On May 21, 2015, the trial 

court issued an opinion adopting its earlier opinion of February 16, 2015. 

See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following question for our review:

Did the suppression court err in denying [Appellant’s] 

[m]otion to [s]uppress the seizure of [Appellant’s] person, his 

subsequent arrest and the results of the blood test, because the 

seizure, arrest and blood test were all performed without 

sufficient probable cause by the arresting officer to believe that 

[Appellant’s] ability to drive was impaired, thereby violating 

[Appellant’s Fourth] Amendment rights?

(Appellant’s Brief, at 8).

On appeal, Appellant challenges the denial of his motion to suppress. 

(See id. at 14-18). When we review a ruling on a motion to suppress, “[w]e 

must determine whether the record supports the suppression court’s factual 

findings and the legitimacy of the inferences and legal conclusions drawn 

from these findings.” Commonwealth v. Holton, 906 A.2d 1246, 1249 

(Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation 

omitted). Because the court in the instant matter found for the prosecution, 

we will consider only the testimony of the prosecution’s witnesses and any 
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uncontradicted evidence supplied by Appellant. See id. If the evidence 

supports the suppression court’s factual findings, we can reverse only if 

there is a mistake in the legal conclusions drawn by the court. See id. 

On appeal, Appellant admits that Officer Lynch had probable cause to 

effectuate the stop of his vehicle. (See Appellant’s Brief, at 15). However, 

Appellant argues that, “this suspended registration was not an indicator of 

impaired driving. In order to conduct a lawful warrantless arrest for DUI, 

Officer Lynch needed to have additional probable cause to believe 

[Appellant] was impaired.” (Id.) (citation omitted). Appellant maintains 

that Officer Lynch did not perform all the field sobriety tests and did not 

observe any impaired driving. (See id. at 17-18). He asserts that the 

results of the blood test should have been suppressed. We disagree.

Officer Lynch arrested Appellant for violations of 76 Pa.C.S.A. § 3802, 

which states in pertinent part:

(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:

(1) There is in the individual’s blood any amount of 

a. . . . 

(iii) metabolite of a substance under 

subparagraph (i) or (ii).

75 Pa.C.S.A. § 3802(d)(1)(iii). Thus, as the Commonwealth correctly states, 

(see Commonwealth’s Brief, at 4), a defendant does not need to be 

impaired to violate this statute, which prohibits driving when a defendant 
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has any amount of a controlled substance in his blood. See 

Commonwealth v. Etchison, 916 A.2d 1169, 1174 (Pa. Super. 2007), 

affirmed, 943 A.2d 262 (Pa. 2008). A police officer has the authority to 

arrest an individual without a warrant if there is probable cause to believe 

the person violated the DUI statute. See Commonwealth v. Dommel, 885 

A.2d 998, 1001 (Pa. Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007). 

Our Supreme Court has stated:

Probable cause is made out when the facts and circumstances 

which are within the knowledge of the officer at the time of the 

arrest, and of which he has reasonably trustworthy information, 

are sufficient to warrant a man of reasonable caution in the 

belief that the suspect has committed or is committing a crime. 

The question we ask is not whether the officer’s belief was 

correct or more likely true than false. Rather, we require only a 

probability, and not a prima facie showing, of criminal activity. 

In determining whether probable cause exists, we apply a 

totality of the circumstances test. 

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citations 

and quotation marks omitted, emphasis in original). The Court also stated 

that:

[p]robable cause is a practical, nontechnical conception: it is a 

fluid concept—turning on the assessment of probabilities in 

particular factual contexts not readily, or even usefully, reduced 

to a neat set of legal rules. Indeed, the instant case illustrates 

as clearly as any other the very reason we adopted this 

approach, namely, the need to be mindful of the notion of 

probable cause as based on the factual and practical 

considerations of everyday life on which reasonable and prudent 

men, not legal technicians, act.

Commonwealth v. Ruey, 892 A.2d 802, 815-16 (Pa. 2006) (citations and 

quotation marks omitted). 
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Recognizing these principles, this Court has stated:

Probable cause does not involve certainties, but rather the 

factual and practical considerations of everyday life on which 

reasonable and prudent men act. It is only the probability and 

not a prima facie showing of criminal activity that is a standard 

of probable cause. To this point on the quanta of evidence 

necessary to establish probable cause . . . finely tuned standards 

such as proof beyond a reasonable doubt or by a preponderance 

of the evidence, useful in formal trials, have no place in the 

[probable-cause] decision.

Dommel, supra at 1002 (citations and quotation marks omitted).

Here, the record shows that, at 1:09 a.m., Officer Lynch, an 

experienced police officer with extensive training in recognizing individuals 

driving under the influence, was patrolling at a time and in an area where it 

was common for persons to drive under the influence. (See N.T. 

Suppression Hearing, at 5-10). He testified that Appellant was driving in a 

very slow and overly cautious manner and a check showed that his 

registration was suspended. (See id. at 10-11). Despite there being places 

to pull over, Appellant stopped in the middle of the road, waited several 

seconds and then pulled over to the side of the road. (See id. 11-12). 

Upon making contact, Officer Lynch smelled alcohol emanating from the 

vehicle and noticed Appellant’s eyes were glassy and pinkish. (See id. at 

12). He testified that “pink eye” is a common side effect of marijuana 

consumption. (Id. at 14; see id. at 14-15). Officer Lynch observed that 

Appellant had difficulty responding to questions, in finding the relevant 
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license, registration and insurance documents, and moved in a slow, 

lethargic manner. (See id. at 12-13).

Officer Lynch asked Appellant to exit his vehicle but Appellant did not 

appear to understand the request, and had to be asked three times before 

slowly leaving the vehicle. (See id. at 16). Officer Lynch again observed 

that Appellant’s eyes were glassy, red, and his pupils were dilated. (See id. 

at 14-15). Appellant admitted to marijuana use within the last sixty to 

ninety days. (See id. at 25). 

Officer Lynch detected several other signs of marijuana use when he 

performed the HGN and Romberg Balancing field sobriety tests. (See id. at 

19-20). These included: eye tremors, body tremors, lack of convergence 

during the HGN test, green discoloration of the tongue, and an inability to 

correctly estimate the passage of time. (See id.). He took Appellant’s pulse 

and found his heart rate to be highly elevated, another known symptom of 

marijuana use; he testified that, based upon his experience, Appellant’s 

pulse was too high to be caused by the fact of the traffic stop. (See id. at 

21-23). Officer Lynch stated that he could not perform the full range of 

sobriety tests because of problems with the terrain. (See id. at 19-20). 

Initially, we note that this Court does not require the failure of field 

sobriety tests in order to arrest an individual for DUI. See Commonwealth 

v. Simmen, 58 A.3d 811, 817 (Pa. Super. 2012). Moreover, “[e]rratic 

driving is not a super-factor, much less one determinative of DUI.” 
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Commonwealth v. Salter, — A.3d —, 2015 WL 4626915, at *5 (Pa. 

Super., filed August 4, 2015). 

Here, Appellant, driving a vehicle with registration under suspension, 

had problems obeying police commands promptly, had glassy and pinkish 

eyes, dilated pupils, a green discoloration of his tongue, failed field sobriety 

tests and exhibited several other known signs of marijuana use. In the 

totality of the circumstances, Officer Lynch had sufficient probable cause to 

arrest Appellant for DUI. See id. (despite absence of erratic driving and 

slurred speech, there was probable cause to arrest where there was odor of 

alcohol emanating from vehicle, defendant had bloodshot eyes and 

performed poorly on field sobriety tests); see also Commonwealth v. 

Weaver, 76 A.3d 562, 568 (Pa. Super. 2013), affirmed, 105 A.3d 656 (Pa. 

2014) (sufficient probable cause to arrest where defendant was sluggish and 

slow to respond to commands and failed HGN test); Simmen, supra at 

817-18; Commonwealth v. Angel, 946 A.2d 115, 118 (Pa. Super. 2008) 

(sufficient probable cause to arrest on suspicion of DUI, even in absence of 

field sobriety tests, where defendant had slurred speech, smelled of alcohol, 

and had glassy eyes). The trial court properly denied the motion to 

suppress. Appellant’s claim lacks merit.

Accordingly, for the reasons discussed above, we affirm the judgment 

of sentence.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2015