J-S34040-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVEN LEONARD VERBECK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1947 MDA 2019

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

BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED APRIL 09, 2021

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 inhome detention. After thorough review, we vacate Verbeck’s judgment of 

sentence pursuant to Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 

____________________________________________

1 See 75 Pa.C.S.A. §§ 3202(d)(1)(i), (iii), (2), and (3); 35 P.S. § 780-

113(a)(31)(i); 75 Pa.C.S.A. § 3802(a)(1); 35 P.S. § 780-113(a)(32); 75 

Pa.C.S.A. § 3302; 75 Pa.C.S.A § 3309(1); 75 Pa.C.S.A. § 3714; 75 Pa.C.S.A. 

§ 4581(a)(2)(ii), respectively.
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2020), and remand for resentencing, but affirm as to all other issues raised 

on appeal. 

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 troopers’ vehicle, it straddled the doubleyellow 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 to 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 
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court. Following a non-jury trial, the court convicted Verbeck of the offenses 

specified above. After sentencing, Verbeck filed a timely appeal. Both Verbeck 

and the trial court have complied with the dictates of Pa.R.A.P. 1925. 

On appeal, Verbeck challenges: 

1. Whether the arresting officer had probable cause to effectuate a 

traffic stop. 

2. Whether Verbeck’s consent to having his blood drawn was 

unknowing, unintelligent, and involuntary. 

3. Whether the sentencing court 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 denial 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 draw 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 
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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 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 belief 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 that Verbeck had violated two provisions of 

Pennsylvania’s Motor Vehicle Code: 75 Pa. C.S.A. § 3302 (oncoming vehicles 

must yield to the right when passing) and 75 Pa. C.S.A. § 3309(1) 

(maintaining vehicle within one lane). The suppression court found the 

troopers’ testimonies credible when they indicated that Verbeck’s vehicle had 

crossed the double-yellow line and entered into the troopers’ lane of travel.

See Suppression Court Opinion, 6/25/19, at 9-10. 

To controvert the troopers’ testimonies, however, Verbeck asserts that 

the dashcam video recorder affixed to the troopers’ vehicle refutes the 

testimonial evidence presented. In fact, Verbeck believes “the video evidence 

wholly contradicts Trooper Trate and Trooper Ammerman's testimony about 
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[his] driving, and therefore should be disregarded or, at minimum, be afforded 

significantly diminished weight.” Appellant’s Brief, at 27. Verbeck goes on to 

describe the video recording as “unambiguous.” Id., at 28. 

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 to 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 on 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 
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troopers’ unambiguous testimony that Verbeck’s vehicle crossed the doubleyellow line in close proximity to the troopers’ vehicle passing in the opposite 

direction establishes a clear and significant safety hazard on the roadway. 

Instead of conclusory statements that their probable cause was derived from 

several Motor Vehicle Code violations without further elucidation, the troopers 

were able to articulate specific facts known to them prior to the stop of 

Verbeck’s vehicle, such as both troopers indicating that Verbeck’s vehicle 

entered approximately half a car length into the troopers’ lane of travel.2 See

Suppression Hearing N.T., 3/25/19, at 8, 43. 

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. 

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2 While the dashcam video arguably does not support a finding that Verbeck 

crossed the double-yellow line by half a car length, it seems likely the 

suppression credited the testimony as referring to half a car width. In any 

event, any amount of crossing the double-yellow line into oncoming traffic was 

sufficient to support a finding of probable cause. Since the video does not 

contradict the trial court’s finding, the arguable conflict between the troopers’ 

estimation of distance and the dashcam video does not afford Verbeck any 

relief.
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Given that we find no fault with the suppression court’s well-reasoned 

analysis, detailing all six factors considered in adjudicating whether someone 

has given knowing consent, we adopt its relevant discussion as our own and 

affirm on that basis. See Suppression Court Opinion, 6/25/19, at 11-15. 

Notably, we emphasize that Verbeck was adequately apprised, both verbally 

and in writing, of his right not to submit to a warrantless blood draw. While 

Verbeck was in custody throughout the blood draw experience, a factor that 

can cut against consent, the balance of the other remaining factors, such as 

Verbeck’s general cooperation to the proceedings as well as there being no 

indication Verbeck has any limiting intellectual disabilities clearly weigh in the 

opposite direction. Although Verbeck asserts he was threatened by one of the 

troopers with jail time if he did not consent, the suppression court found this 

contention to not be credible and therefore served no purpose in the 

suppression court’s analysis. See Commonwealth v. Robertson, 186 A.3d 

440, 448 (Pa. Super. 2018) (indicating that when the only factor weighing 

against voluntariness was that an individual was in custody, “[n]o reasonable 

fact-finder could weigh [the] factors and determine that [a person’s consent 

is] involuntary”). Accordingly, Verbeck’s claim that the blood draw performed 

on him was unknowing or involuntary is meritless. 

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 
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for license reinstatement is effectively criminal punishment, given the 

necessity of driving in this Commonwealth. However, Shoul was decided: 1) 

under the Eighth Amendment and its prohibition on cruel and unusual 

punishment; 2) in the context of using a vehicle for drug trafficking purposes; 

3) while looking at the effect of a lifetime suspension of an individual’s 

commercial driver’s license; and 4) without any reference to warrantless blood 

draws or Birchfield whatsoever. In effect, as the question post-Birchfield is 

whether the consequences, as determined by the individual states, of refusing 

to submit to a warrantless blood test are civil or criminal in nature, Shoul

appears to be wholly inapplicable, other than in its references to the 

significance of driving. 

Additionally, while Verbeck repeatedly highlights the maximum 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. 
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75 Pa.C.S.A. § 1547 clearly sets out the civil penalties for refusing to 

submit to a warrantless blood draw, which includes, among other things, a 

suspension to driving privileges as well as a license restoration fee. Our sister 

Court has stated that “license suspensions, unlike the DUI proceeding, are 

civil, not criminal, proceedings.” Marchese v. Commonwealth, 169 A.3d 

733, 738 (Pa. Cmwlth. 2017). Obviously, enumerating consequences that are 

defined as civil does not inherently make it so. However, we are not persuaded 

by Verbeck’s argument that the license restoration fee, based primarily on the 

maximum payment allowed under the statute, departs the realm of being a 

civil penalty and is, in fact, a latent criminal sanction. As such, Verbeck’s issue 

fails. 

In his final issue, Verbeck complains that 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 75 Pa.C.S.A. § 3806(a) was unconstitutional insofar as it defined a prior 

acceptance of ARD in a DUI case as a prior offense for sentencing 

enhancement purposes. See 232 A.3d 959, 971 (Pa. Super 2020). Therefore, 

using Alleyne as a guidepost, the Chichkin Court determined that increasing 

the mandatory minimum sentence under 75 Pa.C.S.A. § 3804 requires the 
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Commonwealth to “prove, beyond a reasonable doubt, that the [ARD] 

defendant actually committed the prior DUI offense.” Id. 

Here, by utilizing his prior acceptance of ARD under § 3806(a), the 

sentencing court increased Verbeck’s sentence without any kind of 

corresponding hearing or adjudication as to whether Verbeck actually 

committed the predicate DUI offense. Without the Commonwealth 

establishing a necessary element for the enhancement of his sentence under 

§ 3804 in a constitutional manner, Verbeck’s judgment of sentence must be 

vacated, and we remand for resentencing as a first-time DUI offender. 

While the Commonwealth goes to great lengths to indicate why the 

Chickhin 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 Ford Elliott did not participate in the 

consideration or decision of this case.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/09/2021