J-S18023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KELLEN PATRICK PHELAN

Appellant No. 1358 EDA 2016

Appeal from the Judgment of Sentence dated April 5, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0003469-2015 

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED AUGUST 07, 2017

Appellant Kellen Patrick Phelan appeals from the judgment of sentence 

imposed after he was convicted of driving under the influence (DUI) —

general impairment, exceeding the maximum speed limit, and disregarding a 

traffic lane.1 Appellant challenges the denial of his motion to suppress and 

the sufficiency of the evidence to prove DUI. We affirm.

The trial court set forth the facts of this case as follows:

On December 19, 2007 at approximately 2:00 a.m., Corporal 

John T. Malone of the Pennsylvania State Police was on patrol in 

full uniform in a marked State Police unit traveling southbound 

on Route 202 in Concord Township, Delaware County, 

Pennsylvania. Corporal Malone began following a vehicle in front 

of him that he believed was exceeding the speed limit. [Corporal 

Malone saw the vehicle drift to the left two times, with at least 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S. §§ 3802(a)(1), 3362, and 3309(1).
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half of the vehicle entering the left lane. N.T., 12/9/15, at 20.] 

Corporal Malone, a twenty-two-year veteran of the Pennsylvania 

State Police, clocked the vehicle traveling 65 miles per hour in a 

properly posted 45 miles per hour zone. The vehicle was 

followed for 0.7 miles and the speed was clocked for over 0.3 

miles with a certified speedometer. After following the vehicle 

for 0.7 miles, Corporal Malone pulled the vehicle over for 

speeding.

Corporal Malone approached the vehicle to request the 

driver provide identification and registration information. 

Immediately upon arriving at the vehicle, Corporal Malone 

smelled a strong odor of alcohol coming from the vehicle. 

Corporal Malone asked [Appellant] where he was coming from 

and [Appellant] responded “McKenzie[’s] Brew House.”[2] 

Corporal Malone then asked [Appellant] if he had consumed any 

alcoholic beverages that evening and [Appellant] did not answer 

that question.

Corporal Malone then asked [Appellant] if he would exit 

the vehicle. While speaking with [Appellant], Corporal Malone 

detected a strong odor of an alcoholic beverage emitting from 

[Appellant]’s breath and person. [Appellant’s eyes were red and 

his speech was slightly slow and slurred. N.T., 12/9/15, at 57, 

61.] Corporal Malone decided to further investigate to determine 

if [Appellant] was safe to operate a motor vehicle.

Corporal Malone asked [Appellant] to submit to field 

sobriety tests. [Appellant] refused. Corporal Malone then asked 

[Appellant] to submit to a preliminary breath test (PBT). Again, 

[Appellant] refused. Corporal Malone determined based upon his 

observations of [Appellant] and his vast experience that 

[Appellant] could not safely operate a motor vehicle on the 

roadway and placed [Appellant] into custody. Corporal Malone 

then advised [Appellant] of the Implied Consent Law and [placed 

him under arrest] for suspicion of DUI. [Appellant] refused to 

allow his blood to be drawn and signed his refusal.

____________________________________________

2

 Corporal Malone testified that McKenzie’s Brew House is a restaurant and 

microbrewery that sells alcoholic beverages. N.T., 12/9/15, at 24.
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Trial Ct. Op., 7/12/16, at 2-3. Appellant was charged with DUI, exceeding 

the maximum speed limit, disregarding a traffic lane, and careless driving. 

Prior to trial, Appellant filed a motion to suppress, alleging that the 

police lacked reasonable suspicion and/or probable cause to stop him and 

lacked probable cause to arrest him, and thus that all evidence and 

statements obtained as a result of the stop and arrest must be suppressed. 

The trial court held a suppression hearing on December 9, 2015, at which 

Corporal Malone was the only witness who testified. A Mobile Video 

Recording (MVR) from the night of the incident was also introduced into 

evidence. On January 20, 2016, the trial court issued an order denying 

Appellant’s motion to suppress and setting forth findings of fact and 

conclusions of law. 

The court concluded that the initial stop and the subsequent arrest 

were lawful, stating:

Corporal Malone had reasonable suspicion that [Appellant] 

was violating the motor vehicle code. Corporal Malone clocked 

[Appellant]’s vehicle at 65 miles per hour in a 45 mile per hour 

zone for the statutory requisite distance of 3 tenths of a mile 

with a certified speedometer. The initial stop was therefore 

lawful.

Upon approaching the vehicle, Corporal Malone smelled a 

strong odor of an alcoholic beverage coming from inside the 

motor vehicle. Upon exiting the vehicle Corporal Malone smelled 

a strong odor of an alcoholic beverage coming from [Appellant]. 

[Appellant] told Corporal Malone that he was coming from 

M[]cKenzie’s Brew House. [Appellant] refused to participate in 

any field sobriety tests or to take the PBT. Those observations 

provided Corporal Malone with probable cause to arrest 

[Appellant] for driving under the influence of alcohol.
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Order, 1/20/16, at 9. 

On February 4, 2016, the trial court held a non-jury trial. The 

Commonwealth introduced, and the court admitted, the record from the 

suppression hearing. The Commonwealth also presented additional 

testimony from Corporal Malone. On February 8, 2016, the court found 

Appellant guilty of DUI, exceeding the maximum speed limit, and 

disregarding a traffic lane. The court found Appellant not guilty of careless 

driving. 

On April 5, 2016, the trial court sentenced Appellant to 72 hours to 6 

months of confinement for DUI, a $35 fine for exceeding the maximum 

speed limit, and a $25 fine for disregarding a traffic lane. On May 4, 2016, 

Appellant filed a timely notice of appeal.

Appellant raises the following issues, as stated in his brief:

Whether the trial court’s findings were unsupported by the 

record as to the trial court’s denial of [Appellant]’s Motion to 

Suppress which alleges that no motor vehicle violation occurred 

and the stop of [Appellant]’s vehicle lacked reasonable suspicion 

and/or probable cause.

Was the evidence sufficient to convict [Appellant] of the crime of 

Driving Under the Influence of Alcohol or a Controlled Substance 

– General Impairment[,] 75 Pa.C.S. § 3802(a)(1)[,] as to the 

elements of:

i) imbib[ing] a sufficient amount of alcohol; and

ii) whether [Appellant] was incapable of safe driving?

Appellant’s Brief at 4 (some formatting; footnote omitted).
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Suppression

With regard to Appellant’s suppression claim, this Court applies the 

following standard of review:

Our standard of review in addressing a challenge to the denial of 

a suppression motion is 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. 

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. 

Moreover, appellate courts are limited to reviewing only the 

evidence presented at the suppression hearing when examining 

a ruling on a pre-trial motion to suppress.

Commonwealth v. Freeman, 150 A.3d 32, 34-35 (Pa. Super. 2016) 

(citation omitted), appeal denied, No. 853 MAL 2016 (Pa. May 15, 2017).

Appellant argues that the trial court erred in denying his motion to 

suppress because the initial stop was unlawful.3 Specifically, he claims that 

the trial court erroneously applied the reasonable suspicion standard, rather 

than the probable cause standard, to the stop, and that the Commonwealth 

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3

In this appeal, Appellant has abandoned the argument, which he raised in 

the trial court, that the evidence Corporal Malone obtained as a result of the 

initial stop still did not provide probable cause for Corporal Malone to arrest 

him. Appellant’s Brief at 4 n.1.
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failed to establish probable cause that he was speeding. See Appellant’s 

Brief at 20-29. Appellant asserts that the trial court’s findings of fact are 

inconsistent with the MVR from the night of the incident, which shows 

Corporal Malone accelerating to catch up to Appellant. Appellant contends 

that the MVR proves that Corporal Malone did not maintain a constant speed 

for three tenths of a mile while clocking Appellant. Id. at 24. In addition, 

Appellant argues that the Commonwealth failed to prove that Corporal 

Malone had reasonable suspicion to stop him for disregarding a traffic lane 

and therefore lacked grounds to investigate whether he was driving under 

the influence of alcohol. See id. at 29-31.

The Commonwealth concedes, “the trial court incorrectly applied a 

reasonable suspicion standard to evaluate the trooper’s ability to stop a car 

for the Motor Vehicle Code violations of speeding and failing to maintain a 

single lane.” Commonwealth’s Brief at 14. The Commonwealth argues, 

however, that this Court may affirm on grounds different from those of the 

trial court, and urges us to hold that Corporal Malone had probable cause to 

stop Appellant. 

We agree with the parties that the trial court erroneously concluded 

that Corporal Malone needed only reasonable suspicion to stop Appellant for 

speeding. “[W]hen considering whether reasonable suspicion or probable 

cause is required constitutionally to make a vehicle stop, the nature of the 
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violation has to be considered.” Commonwealth v. Salter, 121 A.3d 987, 

993 (Pa. Super. 2015).

Mere reasonable suspicion will not justify a vehicle stop when the 

driver’s detention cannot serve an investigatory purpose relevant 

to the suspected violation. In such an instance, it is [i]ncumbent 

. . . upon the officer to articulate specific facts possessed by him, 

at the time of the questioned stop, which would provide probable 

cause to believe that the vehicle or the driver was in violation of 

some provision of the Code.

Freeman, 150 A.3d at 35 (internal quotation marks and citations omitted, 

emphasis in original). 

If a vehicle is stopped for speeding, the officer must possess 

probable cause to stop the vehicle. This is so because when a 

vehicle is stopped, nothing more can be determined as to the 

speed of the vehicle when it was observed while traveling upon a 

highway. 

Salter, 121 A.3d at 993. Thus, the trial court erred in concluding that only 

reasonable suspicion was necessary to stop Appellant for speeding. 

Although the trial court applied the incorrect standard for the stop, “if 

the record supports the result reached by the suppression court, we may 

affirm on any ground.” Commonwealth v. Brown, 64 A.3d 1101, 1105 

n.3 (Pa. Super.) (citation omitted), appeal denied, 70 A.3d 1096 (Pa. 

2013). Thus, we can affirm the trial court’s denial of Appellant’s motion to 

suppress if we conclude that Corporal Malone had probable cause to stop 

Appellant for speeding. See id.4

____________________________________________

4

 The trial court did not evaluate whether Corporal Malone had probable 

cause to stop Appellant for disregarding a traffic lane or reasonable suspicion 

(Footnote Continued Next Page)
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To determine whether probable cause exists, we must consider 

whether 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.

Commonwealth v. Ibrahim, 127 A.3d 819, 824 (Pa. Super. 2015) 

(citation and internal quotation marks omitted), appeal denied, 138 A.3d 3 

(Pa. 2016). “[P]robable cause does not require certainty, but rather exists 

when criminality is one reasonable inference, not necessarily even the most 

likely inference.” Salter, 121 A.3d at 994 (citation omitted).

In determining whether a person is exceeding the maximum speed 

limit:

The rate of speed of any vehicle may be timed on any highway 

by a police officer using a motor vehicle equipped with a 

speedometer. In ascertaining the speed of a vehicle by the use 

of a speedometer, the speed shall be timed for a distance of not 

less than three-tenths of a mile.

75 Pa.C.S. § 3368(a). In Commonwealth v. Whitmyer, 668 A.2d 1113 

(Pa. 1995), the Supreme Court held that a police officer lacked probable 

cause to stop the defendant for driving at an unsafe speed because, among 

other reasons, the officer observed the defendant for less than the threetenths of a mile distance set forth in Section 3368(a). Id. at 1117.5

(Footnote Continued) _______________________

to stop Appellant for DUI, and, in light of our holding below, it is not 

necessary for us to do so in this appeal.

5 Since our Supreme Court’s holding in Whitmyer, the Vehicle Code 

provision setting forth the requirements a police officer must meet in order 

(Footnote Continued Next Page)
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Here, the trial court found “Corporal Malone clocked [Appellant’s] 

vehicle traveling 65 miles per hour in a properly posted 45 mile per hour 

zone. The vehicle was followed for 0.7 miles and the speed was clocked for 

over 0.3 miles with a certified speedometer.” Order, 1/20/16, Findings of 

Fact ¶ 4. Corporal Malone testified that he clocked Appellant for 

approximately seven tenths of a mile before the MVR was activated. 

Specifically, he testified that he began clocking Appellant at 65 miles per 

hour approximately two-tenths of a mile north of Smith Bridge Road, that 

Appellant accelerated when they reached Naamans Creek Road, and that the 

distance between Smith Bridge Road and Naamans Creek Road is seventenths of a mile. N.T., 12/9/15, at 20, 43. Corporal Malone testified that 

the MVR was not activated until “right before” Naamans Creek Road. Id. at 

40. It does not follow, as Appellant argues, that because Corporal Malone’s 

vehicle accelerated after the MVR was activated, Corporal Malone did not 

maintain a constant speed before that time. Because the trial court’s 

findings of fact are supported by the record, we are bound by them. See 

Freeman, 150 A.3d at 35. We hold that Corporal Malone had probable 

(Footnote Continued) _______________________

to initiate a stop of a vehicle has changed. Specifically, the former version 

of 75 Pa.C.S. § 6308(b) required a police officer have “articulable and 

reasonable grounds to suspect a violation” of the Vehicle Code to effectuate 

a vehicle stop. The present version requires a police officer have 

“reasonable suspicion” that a violation of the Vehicle Code is occurring or 

had occurred in order to initiate a stop. Despite the change in language, this 

Court has continued to hold that a police officer must have probable cause to 

pull over a vehicle for speeding. See Salter, 121 A.3d at 993.
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cause to stop Appellant for exceeding the maximum speed limit, and we 

affirm the trial court’s denial of Appellant’s motion to dismiss.6

Sufficiency of the Evidence (DUI)

In his second issue, Appellant contends that the evidence was 

insufficient to support his conviction of driving under the influence – general 

impairment, 75 Pa.C.S. § 3802(a)(1).7 

A claim challenging the sufficiency of the evidence is a question 

of law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a 

reasonable doubt. When reviewing a sufficiency claim the court 

is required to view the evidence in the light most favorable to 

the verdict winner giving the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence. 

As a reviewing court, we may not weigh the evidence or 

substitute our judgment for that of the fact-finder, who is free to 

believe all, part, or none of the evidence. 

Commonwealth v. Chambers, 157 A.3d 508, 512 (Pa Super. 2017) 

(ellipses, citations, and some formatting omitted).

Subsection 3802(a)(1) of the Vehicle Code provides: “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 

____________________________________________

6 Because Corporal Malone had probable cause for the stop based on 

Appellant’s speeding, we need not resolve Appellant’s alternative argument 

that the corporal lacked reasonable grounds to stop Appellant for driving 

across the lane line.

7

 Appellant does not challenge the sufficiency of the evidence with regard to 

exceeding the maximum speed limit or disregarding a traffic lane.
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is rendered incapable of safely driving, operating or being in actual physical 

control of the movement of the vehicle.” 75 Pa.C.S. § 3802(a)(1). “Thus, 

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). Appellant challenges only 

the second element.

This Court has explained that 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.” Kerry, 906 A.2d at 1241 (citation omitted). 

The types of evidence that the Commonwealth may proffer in 

a subsection 3802(a)(1) prosecution include but are not limited 

to, the following: the offender’s actions and behavior, including 

manner of driving and ability to pass field sobriety tests; 

demeanor, including toward the investigating officer; physical 

appearance, particularly bloodshot eyes and other physical signs 

of intoxication; odor of alcohol, and slurred speech.

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

In its opinion, the trial court concluded that the evidence was sufficient 

to prove that Appellant had imbibed a sufficient amount of alcohol such that 

he was rendered incapable of safely driving. Trial Ct. Op. at 8-9. Corporal 

Malone testified that Appellant was speeding and drifted out of his lane two 

times. Appellant admitted that he was coming from a microbrewery when 
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Corporal Malone stopped his car, and Corporal Malone testified that 

Appellant’s eyes were red and his speech was slow and slurred, and that 

Appellant smelled of alcohol, did not respond when asked whether he had 

consumed any alcoholic beverages, and refused to take field sobriety tests 

or submit to a preliminary breath test.8 Viewing the evidence in the light 

most favorable to the Commonwealth, we agree with the trial court that the 

evidence was sufficient to prove a violation of Subsection 3802(a)(1). 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2017

____________________________________________

8 75 Pa.C.S. § 1547(e) provides:

In any summary proceeding or criminal proceeding in which the 

defendant is charged with a violation of section 3802 or any 

other violation of this title arising out of the same action, the fact 

that the defendant refused to submit to chemical testing . . .

may be introduced in evidence along with other testimony 

concerning the circumstances of the refusal. No presumptions 

shall arise from this evidence but it may be considered along 

with other factors concerning the charge.