J. S44007/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

FRANKLIN D. SMITH, JR., : No. 2975 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, September 4, 2015,

in the Court of Common Pleas of Delaware County

Criminal Division at No. CP-23-CR-0002706-2015

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016

Franklin D. Smith, Jr., appeals from the judgment of sentence entered 

on September 4, 2015, by the Court of Common Pleas of Delaware County 

following his conviction in a waiver trial of driving under the influence of 

alcohol or controlled substance (“DUI”), operation of vehicles without official 

certificate of inspection, and restrictions on alcoholic beverages.1 We affirm.

The trial court set forth the following factual and procedural history:

Officer Matthew Liss is employed with the 

Nether Providence Township Police Department and 

has been so employed as a patrolman for the past 

sixteen years. Over the course of his career as a 

patrolman, Officer Liss has had the opportunity to 

conduct hundreds of arrests for [DUI].

 

1 75 Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 4703(a), and 75 Pa.C.S.A. 

§ 3809(a), respectively.
J. S44007/16

- 2 -

On February 8, 2015, in his capacity as a 

patrolman, Officer Liss was working the 7:00 a.m. [] 

to 7:00 pm.[] shift. Officer Liss was in uniform and 

operating a marked patrol vehicle. Around 

3:00 p.m., as Officer Liss was traveling eastbound on 

Brookhaven Road approaching the intersection of 

Rose Valley Road, he observed a blue colored pickup 

truck traveling in the westbound direction on 

Brookhaven Road. Officer Liss’s attention was drawn 

to the vehicle because, based on his training and 

experience, it appeared that the emission and 

inspection stickers were fraudulent. Through his 

training, Officer Liss knew that [the Pennsylvania 

Department of Transportation (PennDOT)] uses 

many anti-counterfeit measures when producing the 

stickers; two of the biggest identifiers being the color 

of the sticker and the texture of the paper. From his 

vehicle, Officer Liss could clearly see the stickers in 

the bottom left-hand portion of the truck[’]s 

window[.] The color was his first indicator that they 

were not valid. Typically, the sticker should be 

orange in color; however, the truck’s stickers were 

grayish in color.

Officer Liss turned his patrol vehicle around, 

activated his emergency lights and siren, and 

conducted a vehicle stop at the area of Moore Road 

and Brookhaven Road. Officer Liss exited his patrol 

vehicle and made contact with the driver of the 

truck. The driver produced his license, registration, 

and insurance, which identified him as [appellant]. 

There was also another male in the front passenger 

seat.

As Officer Liss was speaking with [appellant], 

he could detect an odor of alcohol emanating from 

his breath and person. Officer Liss also observed 

that [appellant’s] speech was slightly slurred and his 

eyes were red and blurry. From his vantage point 

outside the window of the vehicle, Officer Liss could 

see that in the center of the vehicle, on the 

transmission hump, there was an open 40[-ounce] 

bottle of beer in a brown paper bag. Officer Liss 

asked [appellant] if he had been drinking to which 
J. S44007/16

- 3 -

[appellant] responded that he had a shot and a beer 

earlier in the day.

Officer Michael Markunas, of the Nether 

Providence Township Police Department, arrived as 

backup and the officers decided to ask [appellant] to 

exit his vehicle in order to conduct sobriety tests. 

With his twenty-four years as a patrolman, 

Officer Markunas has been involved in approximately 

500 arrests for DUI and has prior training in 

conducting field sobriety tests.

Officer Markunas had [appellant] go over to 

the shoulder area of the road because it was a flat 

walking surface and had a straight line. Immediately 

upon speaking with [appellant], Officer Markunas 

detected an odor of alcohol emanating from 

[appellant’s] person and that [appellant’s] eyes were 

glassy and bloodshot.

Officer Markunas started with the horizontal 

gaze nystagmus test. Officer Markunas instructed 

[appellant] to stand with his feet together, hands at 

his side, to not move his head, and to stay still while 

following Officer Markunas’s pen with his eyes. As 

soon as Officer Markunas began to move the pen, 

[appellant] started turning his head; indicating to 

Officer Markunas that [appellant] was unable to 

follow simple instructions and that [appellant’s] eyes 

showed nystagmus.

Next, Officer Markunas performed the lack of 

convergence test. Typically, if the test is completed 

without failure, a person’s eyes should cross; 

[appellant’s] eyes stayed locked in the same 

position.

Lastly, Officer Markunas asked [appellant] to 

perform the walk and turn test. Officer Markunas 

instructed [appellant] to keep his feet together, 

hands at his side, and count out loud nine heel-totoe steps. Officer Markunas demonstrated the test 

for [appellant]. [Appellant] did not step heel-to-toe; 
J. S44007/16

- 4 -

failed to keep his hands at his side; and did not turn 

even remotely close to the proper way.

Based on [appellant’s] performance on all 

three tests, Officer Markunas determined that 

[appellant] was under the influence, most likely of 

alcohol, and was incapable of safely [driving] a 

motor vehicle on the roads of the Commonwealth.

Officer Markunas informed Officer Liss that 

[appellant] failed all of the tests. Officer Liss placed 

[appellant] under arrest for [DUI] and put 

[appellant] in the back of his patrol vehicle, where 

he read [appellant] the Pennsylvania implied consent 

law and explained to him what the form meant. 

After reading and explaining the form twice, 

[appellant] refused to submit to any chemical 

testing, stating that he was not “alley drunk.”[2] 

. . .

On August 8, 2015, counsel for [a]ppellant 

filed a motion to suppress alleging that the traffic 

stop of [a]ppellant’s vehicle was unlawful. On 

September 4, 2015, this Court held a suppression 

hearing. Counsel for the Commonwealth and 

counsel for [appellant] both agreed that testimony 

would be presented on the suppression issues and, 

depending on the outcome, a non-jury trial would be 

conducted immediately thereafter.

The Commonwealth presented testimony from 

Officer Liss and Officer Markunas who testified to the 

facts outlined above. Officer Markunas was offered 

and accepted as an expert in the field of sobriety 

testing and [DUI] investigations. The 

Commonwealth admitted two exhibits: C1 - Photo of 

[appellant’s] emission and inspection stickers and 

C2 [-] The Pennsylvania Implied Consent Form.

 

2 Officer Liss testified that after he read a refusal to submit to chemical 

testing form to appellant and asked appellant to sign the form, appellant 

refused and stated, “I’m not alley drunk.” Officer Liss further testified that 

he did not know what appellant meant by that statement. (Notes of 

testimony, 9/4/15 at 40-41.)
J. S44007/16

- 5 -

After hearing the testimony, this Court 

determined that the information provided by the 

officers was credible and that Officer Liss had 

reasonable suspicion to conduct a traffic stop based 

on a motor vehicle code violation. As such, this 

Court denied the motion to suppress.

In regards to the non-jury trial, the 

Commonwealth rested on the testimony provided at 

the suppression hearing and the admitted exhibits. 

Appellant presented Lavinia Beulah as a character 

witness. Ms. B[eul]ah testified that she has known 

[a]ppellant for forty years or more and that his 

reputation in the community is nice, friendly, helpful, 

honest, and of good moral character. Appellant also 

elected to testify.

Appellant stated that on February 8, 2015, he 

had two drinks, a shot and a beer, around noon. 

Around 3:00 p.m., [a]ppellant was driving his pickup 

truck with his friend in the front passenger seat and 

that his passenger had an open 40[-ounce] beer. 

Appellant stated [that] he felt confused by the 

sobriety tests and that he was never shown the 

implied consent form.

The Court found [a]ppellant guilty of Count 1: 

DUI 1st offense; Count 2: Evidence of Emission 

Inspection; and Count 3: Restrictions on Alcoholic 

Beverages. Appellant was sentenced on Count 1 [to] 

72 hours to 6 months in Delaware County Prison. 

There was no further penalty for Count 2 or Count 3.

On October 2, 2015, [a]ppellant filed a notice 

of appeal. On October 26, 2015, [a]ppellant filed a 

1925(b) statement of matters complained of on 

appeal.

Trial court opinion, 11/13/15 at 1-6 (footnotes and citations to notes of 

testimony omitted).

Appellant raises the following issues for our review:
J. S44007/16

- 6 -

[1.] Did the trial court err when it denied 

[appellant’s] motion to suppression [sic] 

evidence obtained as a result of an unlawful 

traffic stop leading to his arrest?

[2.] Was the evidence insufficient to sustain a 

conviction of [DUI] because the 

Commonwealth failed to prove that [appellant] 

committed that offense beyond a reasonable 

doubt?

Appellant’s brief at 5.

Our standard of review for challenges to the denial of a suppression 

motion is as follows:

[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, we are bound by these 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 are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012), 

appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).
J. S44007/16

- 7 -

Whenever a police officer has reasonable suspicion that a violation of 

the Vehicle Code, 75 Pa.C.S.A. § 101, et seq., is occurring or has occurred, 

he may stop a vehicle for the purpose of checking the vehicle’s registration, 

proof of financial responsibility, vehicle identification number or engine 

number or the driver’s license, “or to secure such other information as the 

officer may reasonably believe to be necessary to enforce the provisions of 

[the Vehicle Code].” Id. at § 6308(b). Section 6308(b) requires only 

reasonable suspicion to support a vehicle stop for gathering information 

necessary to enforce a Vehicle Code violation. A police officer must, 

however, have probable cause to support a vehicle stop where the officer’s 

investigation following the stop serves no “investigatory purpose relevant to 

the suspected [Vehicle Code] violation.” Commonwealth v. Feczko, 10 

A.3d 1285, 1291 (Pa.Super. 2010) (en banc), appeal denied, 25 A.3d 327 

(Pa. 2011). As explained by our supreme court:

Indeed, the language of § 6308 reflects this very 

intent. Stops based on reasonable suspicion are 

allowed for a stated investigatory purpose: “to 

secure such other information as the officer may 

reasonably believe to be necessary to enforce the 

provisions of this title.” 75 Pa.C.S.[A.] § 6308(b). 

This is conceptually equivalent to the purpose of a 

Terry[

3

] stop. It does not allow all stops to be 

based on the lower quantum--it merely allows this 

for investigatory stops, consistent with the 

requirements of both federal and state constitutions. 

We interpret the legislature’s modification of § 6308 

as merely eliminating the statutory requirement of a 

greater level of information for a stop under the 

 

3 Terry v. Ohio, 392 U.S. 1 (1968).
J. S44007/16

- 8 -

Vehicle Code than is constitutionally required for all 

other stops.

Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008). “[I]f the officer 

has a legitimate expectation of investigatory results, the existence of 

reasonable suspicion will allow the stop--if the officer has no such 

expectations of learning additional relevant information concerning the 

suspected criminal activity, the stop cannot be constitutionally permitted on 

the basis of mere suspicion.” Id. at 115. Therefore, “when the existence of 

reasonable suspicion combines with the expectation that the stop will allow 

light to be shed on the relevant matters, the stop is not unconstitutional.” 

Id.

Here, Officer Matthew Liss stopped appellant’s vehicle because he 

observed that it appeared to have fraudulent inspection and emissions 

stickers. (Notes of testimony, 9/4/15 at 11.) Officer Liss testified that 

during the 16 years that he has been a police officer, he has come across 

numerous fraudulent inspection and emissions stickers. (Id. at 9, 11-12.) 

He stated that PennDOT uses many anti-counterfeit measures when it 

produces inspection and emissions stickers, including the color of the sticker. 

(Id. at 12.)

As appellant’s truck and Officer Liss’ patrol vehicle passed each other 

while traveling in opposite directions, Officer Liss testified that he noticed 

that the stickers on appellant’s truck were gray, as opposed to the 

PennDOT-issued orange. (Id. at 13-16.) This observation gave rise to a 
J. S44007/16

- 9 -

suspected violation of the Vehicle Code provision requiring that vehicles have 

current, valid inspection stickers. See 75 Pa.C.S.A. § 4703(a). Under the 

totality of the circumstances, then, Officer Liss’ initial observation that the 

inspection and emissions stickers on appellant’s truck appeared to be 

fraudulent gave Officer Liss reasonable suspicion to believe that appellant 

was in violation of 75 Pa.C.S.A. § 4703(a). Therefore, the subsequent traffic 

stop to investigate the inspection and emissions stickers affixed to 

appellant’s vehicle was supported by reasonable suspicion.

Appellant next complains that the Commonwealth failed to produce 

sufficient evidence to sustain his DUI conviction.

Our standard of review for a challenge to the 

sufficiency of the evidence is well settled. We must 

view all the evidence in the light most favorable to 

the verdict winner, giving that party the benefit of all 

reasonable inferences to be drawn therefrom. 

Additionally, it is not the role of an appellate court to 

weigh the evidence or to substitute our judgment for 

that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005), 

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v. 

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143 

(Pa. 2004) (citations omitted).

The Vehicle Code defines DUI as:

§ 3802. Driving under influence of alcohol or 

controlled substance.

(a) General impairment.
J. S44007/16

- 10 -

(1) An individual may not drive, 

operate or be in actual physical 

control of the movement of a 

vehicle after imbibing a sufficient 

amount of alcohol such that the 

individual is rendered incapable of 

safely driving, operating or being in 

actual physical control of the 

movement of the vehicle.

75 Pa.C.S.A. § 3802(a)(1).

In order to sustain a conviction under Section 3802(a)(1), the 

Commonwealth must prove: (1) that defendant was operating a motor 

vehicle, (2) after imbibing a sufficient amount of alcohol such that the 

individual is rendered incapable of safely driving. Commonwealth v. 

Kerry, 906 A.2d 1237, 1241 (Pa.Super. 2006). To establish that one is 

incapable of safe driving, the Commonwealth must prove that alcohol has 

substantially impaired the normal mental and physical faculties required to 

operate the vehicle safely. Id. “Substantial impairment” means a 

diminution or enfeeblement in the ability to exercise judgment, to deliberate 

or to react prudently to changing circumstances and conditions. Id. (citation 

omitted). Section 3802(a)(1) “is a general provision and provides no 

specific restraint upon the Commonwealth in the manner in which it may 

prove that an accused operated a vehicle under the influence of alcohol to a 

degree which rendered him incapable of safe driving.” Id. (citation 

omitted).
J. S44007/16

- 11 -

Here, Officer Liss testified that after he pulled appellant over, he 

smelled alcohol on appellant’s breath; he noticed that appellant’s eyes were 

red, watery, and bloodshot; and that when he spoke with appellant, he 

detected a slight slur. (Notes of testimony, 9/4/15 at 17-18.) Officer Liss 

also observed a partially consumed 40-ounce bottle of beer resting on the 

truck’s console. (Id. at 18, 36.) When Officer Liss asked appellant if he had 

been drinking alcohol, appellant stated that he had consumed “a shot and a 

beer” earlier in the day. (Id. at 18.) At that point, Officer Michael Markunas 

arrived on the scene as backup and performed field sobriety tests. (Id. at 

19.)

Officer Markunas testified that when he began speaking with appellant, 

he smelled alcohol emanating from appellant’s person and observed that 

appellant’s eyes appeared glassy and bloodshot. (Id. at 51.) With respect 

to field-sobriety testing, Officer Markunas first conducted horizontal gaze 

nystagmus (“HGN”) testing, which is a vision test used to determine the 

ability of the subject’s eyes to properly track and maintain focus on objects. 

(Id. at 51-52.) Officer Markunas testified that appellant’s performance on 

that test indicated that appellant was under the influence of “something.” 

(Id. at 53.) Officer Markunas then performed a lack of convergence test 

which expands upon HGN testing. (Id. at 53-55.) Appellant’s performance 

on that test also indicated that appellant was under the influence of 

“something.” (Id. at 55.) Officer Markunas then performed a walk-and-turn 
J. S44007/16

- 12 -

test. (Id.) At the conclusion of that test, Officer Markunas testified that he 

was “relatively sure” that appellant was under the influence of alcohol, a 

controlled substance, or both. (Id. at 55-56.) At that point, due to 

appellant’s lack of cooperation, Officer Markunas terminated testing. (Id. at 

56.) Officer Liss then placed appellant under arrest. (Id. at 20-21.) 

Appellant refused chemical testing. (Id. at 21.)

Based on the record before us, and viewing the evidence, and all 

reasonable inferences drawn therefrom, in the light most favorable to the 

Commonwealth as verdict winner, the Commonwealth produced sufficient 

evidence to show that appellant was operating a motor vehicle after 

consuming a sufficient amount of alcohol to render him incapable of safe 

driving and, therefore, sustain his DUI conviction.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2016