J-S11006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AARON T. WILKINSON

Appellant No. 595 MDA 2014

Appeal from the Judgment of Sentence April 26, 2013

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0001288-2011

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 10, 2015

Appellant, Aaron T. Wilkinson, appeals nunc pro tunc from the 

judgment of sentence entered by the Court of Common Pleas of Luzerne 

County on April 26, 2013. In this appeal from a DUI conviction, Wilkinson 

argues that the suppression court erred in denying his suppression motion. 

Wilkinson maintains that the traffic stop was illegal and evidence of his 

refusal to submit to a breathalyzer test should have been suppressed. We 

affirm. 

Trooper Sandra L. DeAndrea was on routine patrol on the midnight 

shift when she slowed for a red light. As she slowed down, she observed a 

car pass through the intersection “very fast through the light....” N.T., 

Suppression Hearing, 4/19/12, at 10. The car turned into her lane. When 

the light turned green she followed the car, but had to “increase [her] speed 
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to catch up to [the] vehicle[.]” Id., at 11. She stayed two to three car 

lengths behind and used her speedometer to judge the speed of the car. 

She “clocked” the car for two-tenths of a mile at 40 miles-per-hour—in a 25 

miles-per-hour zone. Id. As she followed behind, the car went from “riding 

on the center yellow lines to going across the road and riding on the white 

lines.” Id., at 15. Eventually, she followed the car into an intersection 

where the car “went through the intersection really wide,” briefly leaving the 

lane of travel by crossing the fog line. Id. Trooper DeAndrea grew 

concerned for other drivers on the road and conducted a traffic stop.

When she approached the vehicle, she could smell a strong odor of 

alcohol emanating from the driver, whom she soon identified as Wilkinson. 

He had bloodshot and glassy eyes. The trooper had Wilkinson step out of 

the vehicle and she performed field sobriety tests. He performed 

unsatisfactorily. At this point, Trooper DeAndrea then placed Wilkinson 

under arrest for suspicion of DUI. 

At the State Police barracks, Trooper Christopher M. Bayzick 

attempted to administer the breathalyzer test. Wilkinson provided just one 

strong, steady breath for the test; his other tries were staccato and 

inconsistent. Blow, stop, blow, and stop. The troopers deemed his noncompliance a refusal to submit to testing. 

After a bench trial, the trial court convicted Wilkinson of DUI, general 

impairment, 75 Pa.C.S.A. § 3802(a)(1), and the summary offense of 
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restrictions on alcoholic beverages, 75 Pa.C.S.A. § 3802(a). The trial court 

imposed sentence. Wilkinson filed an appeal, which this Court quashed as 

untimely. See Order, 1145 MDA 2013, filed 9/18/13 (Panella, J.). Wilkinson 

filed a PCRA petition seeking restoration of his appellate rights nunc pro 

tunc, which the PCRA court granted. This appeal followed. 

Both of Wilkinson’s issues on appeal concern suppression matters. 

The transcript of the suppression hearing, however, is not in the certified 

record. A review of the certified record discloses that Wilkinson did not even 

order the transcript. See Pa.R.A.P. 1911(a). A copy of the transcript from 

the suppression hearing is, however, somehow, in the reproduced record. 

The Commonwealth has not objected to the copy in the reproduced record. 

This Court has, under certain circumstances, overlooked an omission 

of material from the certified record when it could be found in the 

reproduced record. See, e.g., Stewart v. Owens-Corning Fiberglas, 806 

A.2d 34, 37 n.3 (Pa. Super. 2002). See also Pa.R.A.P. 1921 Note. We will 

overlook Wilkinson’s error in this case.1 

Our standard of review when an appellant appeals the denial of a 

suppression motion is as follows.

____________________________________________

1 We caution Wilkinson’s privately retained counsel, Timothy Matthew 

Barrouk, Esquire, to follow the Rules of Appellate Procedure in future 

appeals—or risk waiver. See, e.g., Commonwealth v. Preston, 904 A.2d 

1, 7 (Pa. Super. 2006) (en banc).
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[W]e are limited to determining whether the factual findings are 

supported by the record and whether the legal conclusions 

drawn from those facts are correct. We may consider the 

evidence of the witnesses offered by the prosecution, as verdict 

winner, and only so much of the defense evidence that remains 

uncontradicted when read in the context of the record as a 

whole. We are bound by facts supported by the record and may 

reverse only if the legal conclusions reached by the court below 

were erroneous.

Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007) 

(citation omitted).

The record supports the suppression court’s factual findings, which we 

set forth earlier in this memorandum. Accordingly, we turn to an 

examination of the suppression court’s legal conclusions.

Wilkinson first argues that the traffic stop was illegal as it was not 

supported by either probable cause or reasonable suspicion. Our review 

indicates that Trooper DeAndrea had reasonable suspicion to conduct a 

traffic stop to investigate if Wilkinson was driving while intoxicated. 

The quantum of proof necessary to make a vehicle stop on suspicion2

of a violation of the motor vehicle code is governed by 75 Pa.C.S.A. § 

6308(b), which states:

____________________________________________

2

The suppression court’s finding that the vehicle code violations provided an 

additional basis with which to lawfully stop Wilkinson’s vehicle is untenable. 

See Suppression Court Opinion, 11/6/12, at 6-7. Trooper DeAndrea did not 

have probable cause to stop the vehicle for any motor vehicle code 

violations. Ascertaining the speed of a car by use of speedometer requires 

that “the speed shall be timed for a distance of not less than three-tenths of 

a mile.” 75 Pa.C.S.A. § 3368(a). Trooper DeAndrea testified that she 

(Footnote Continued Next Page)
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(b) Authority of police officer.—Whenever a police officer is 

engaged in a systematic program of checking vehicles or drivers 

or has reasonable suspicion that a violation of this title is 

occurring or has occurred, he may stop a vehicle, upon request 

or signal, 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 this title.

75 Pa.C.S.A. § 6308(b). 

Traffic stops based upon suspicion of a violation of the motor vehicle 

code (in this case DUI) under section 6308(b) “must serve a stated 

investigatory purpose.” Commonwealth v. Feczko, 10 A.2d 1285, 1291 

(2010) (en banc). 

In deciding whether reasonable suspicion exists for an 

investigatory stop, our analysis is the same under both Article I, 

§ 8 and the Fourth Amendment. 

The fundamental inquiry is an objective one, namely, whether 

“the facts available to the officer at the moment of the 

[intrusion] ‘warrant a man of reasonable caution in the belief’ 

that the action taken was appropriate.” This assessment, like 

that applicable to the determination of probable cause, requires 

an evaluation of the totality of the circumstances, with a lesser 

showing needed to demonstrate reasonable suspicion in terms of 

both quantity or content and reliability. 

(Footnote Continued) _______________________

“clocked” the car for only two-tenths of a mile. See N.T., Suppression 

Hearing, 4/19/12, at 36-37. And while Trooper DeAndrea observed 

Wilkinson drive erratically, it was within his lane of travel and during the 

wide turn he only briefly crossed over the fog line. Such actions do not 

provide probable cause to make a stop. See, e.g., Commonwealth v. 

Gleason, 785 A.2d 983 (Pa. 2001); Commonwealth v. Cook, 865 A.2d 

869, 874 (Pa. Super. 2004) (“Whether an officer possesses probable cause 

to stop a vehicle for a violation of this section depends largely upon on 

whether a driver's movement from his lane is done safely.”); 10 West’s Pa. 

Prac., Driving Under the Influence § 8:3 (2014 ed.).
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Commonwealth v. Leonard, 951 A.2d 393, 396 (Pa. Super. 2008) 

(citations omitted). 

As noted, Trooper DeAndrea observed Wilkinson, late at night, drive 

well above the speed limit, swerve within his lane of travel, and make an 

unnecessarily wide turn at an intersection. These actions—taken in total—

are sufficient to support a reasonable suspicion of DUI. Accordingly, 

Wilkinson’s agument that Trooper DeAndrea conducted an illegal 

investigatory detention is without merit. 

He next argues that the evidence of his refusal to conduct a BAC test 

should be suppressed because of a “sample agreement error.” The 

testimony established that Wilkinson himself accounted for the error. He 

refused to perform the test correctly. 

Trooper Bayzick performed the BAC tests at the State Police barracks. 

He testified that a “strong, steady breath” of about seven seconds’ duration 

is needed for the test. N.T., Suppression Hearing, at 63. A complete test is 

two breath samples. Wilkinson only gave one proper breath sample. (It 

was above the legal limit.) In the others, he performed the test incorrectly. 

For instance, on the one failed test the graph shows “blowing in hard, 

stopping, blowing in hard; and blowing a little bit, stopping, blowing, 

stopping, blowing, stopping.” Id., at 69. See also id., at 73-74. Breathing 

that was the polar opposite of strong and steady and consistent. Trooper 

Bayzick informed Trooper DeAndrea that Wilkinson “wasn’t appropriately 

blowing into the machine” and that “[h]e wasn’t conducting the test as he 
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was instructed to do so.” Id., at 75. The troopers concluded that Wilkinson 

refused the test. 

Based on our review of the reproduced record, we conclude that the 

suppression court committed no error in denying Wilkinson’s motion to 

suppress the evidence of his BAC test refusal. See Com., Dept. of 

Transp., Bureau of Driver Licensing v. Boucher, 691 A.2d 450, 454 (Pa. 

1997) (failure to supply a sufficient breath sample deemed a refusal to 

submit to testing). The “sample agreement error” was Wilkinson’s creation. 

See N.T., 4/19/12 at 73-74 (“And then Sample No. 3 was, once again, the 

peaks and valleys and peaks and valleys [i.e., the utter failure to provide a 

strong, steady breath] that ultimately made the sample agreement error.”). 

We agree with the suppression court that Wilkinson cannot benefit from his 

purposefully obstructive behavior.

Judgment of sentence affirmed. 

 Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015