J-S24044-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARK LEROY WILDASIN, JR.,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1750 MDA 2017

Appeal from the Judgment of Sentence October 16, 2017

in the Court of Common Pleas of Adams County,

Criminal Division at No(s): CP-01-CR-0001306-2016

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 23, 2018

Mark Leroy Wildasin, Jr. (“Wildasin”), appeals from the judgment of 

sentence imposed following his convictions of three counts of driving under 

the influence (“DUI”), and one count each of endangering welfare of children, 

careless driving, and restrictions on alcoholic beverages.1 We affirm.

On August 3, 2016, Wildasin drove to McDonald’s, with his one-year-old 

daughter as a passenger, where a drive-through employee noticed an open 

beer can between Wildasin’s legs and called police. N.T., 2/13/17, at 6. The 

witness provided police with Wildasin’s license plate number, a physical 

description of Wildasin and his vehicle, and the direction in which he was 

headed upon leaving McDonald’s. Id. at 7. Police dispatch sent out a notice 

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1 See 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3802(b); 18 Pa.C.S.A. 

§ 4304(a)(1); 75 Pa.C.S.A. §§ 3714(a), 3809(a).
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over the radio with the information provided by the witness and Wildasin’s 

home address. Id. at 6-7.

Officer Darren David (“Officer David”), of the Pennsylvania Game and 

Wildlife Commission, was the first officer to make contact with Wildasin at his 

home. N.T., 8/17/17, at ¶ 4, Exhibit 5 (Stipulations). At the home, Officer 

David observed an SUV matching the description by the eyewitness, and 

bearing the same license plate number, and Wildasin, who was standing in his 

driveway next to the vehicle. Id. Officer David observed Wildasin exhibit 

signs of intoxication, including an odor of alcohol, slurred speech, glassy eyes, 

and difficulty with balance. Id. at ¶ 5. When asked, Wildasin admitted to 

consuming alcohol. Id. Shortly thereafter, Reading Township Officer Greg 

Morehead (“Officer Morehead”) arrived and also observed Wildasin exhibit an 

odor of alcohol, difficulty with balance, slurred speech, and glassy eyes. Id.

at ¶ 6. When asked by Officer Morehead, Wildasin again admitted to 

consuming alcohol. Id. Wildasin advised the two officers that there was an 

open beer in his vehicle, and two unopened beers in a cooler in the vehicle. 

Id. at ¶ 7. He also commented to the officers that he was “fucked ... because 

he was drinking.” Id.

Less than fifteen minutes following the radio dispatch, Pennsylvania 

State Trooper Maeve A. Hoffman (“Trooper Hoffman”) arrived and assumed 

control of the investigation. N.T., 2/13/17, at 8-10, 13. Trooper Hoffman

observed that Wildasin was emanating an odor of alcohol and had slurred 

speech, and that Wildasin’s eyes were glassy and bloodshot. Id. at 8-10.
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Wildasin admitted to Trooper Hoffman that he had consumed two beers prior 

to driving to McDonald’s, and Trooper Hoffman observed in plain sight an open 

beer can sitting on the front driver-side floor of Wildasin’s vehicle. Id. at 10-

12. Trooper Hoffman conducted standardized field sobriety tests and a 

preliminary breath test (“PBT”). Id. at 12-13. As a result of her observations 

and a positive reading from the PBT, Trooper Hoffman placed Wildasin under 

arrest. Id. at 13. Wildasin was taken to a local hospital where his blood was 

drawn2 and subsequently sent to the Pennsylvania State Police lab for 

analysis. N.T., 8/17/17, at ¶ 10, Exhibit 5. Wildasin’s sample returned a 

blood alcohol concentration of 0.167%. Id. at ¶ 11. Wildasin was 

subsequently charged with the above-described offenses. 

Wildasin filed a Motion to suppress evidence, arguing, in relevant part,

that (1) he was subjected to a custodial detention without probable cause;

and (2) alternatively, he was subjected to an investigative detention without 

reasonable suspicion; both in violation of the Fourth Amendment of the United 

States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

Following a hearing and submission of briefs, the trial court denied Wildasin’s 

Motion. The trial court determined that Trooper Hoffman possessed 

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2 Trooper Hoffman testified that prior to Wildasin’s blood test, she advised him 

of his rights by using a modified DL-26 form, which omits any threat of criminal 

penalties for failure to submit to a blood draw. See N.T., 2/13/17, at 14-15; 

id. at Exhibit 1. Therefore, no Birchfield issue is present. See 

Commonwealth v. Smith, 177 A.3d 915, 922 (Pa. Super. 2017) (stating 

that Birchfield is inapplicable where the defendant is not advised of criminal 

penalties for refusing to consent to a blood draw) (citing Birchfield v. North 

Dakota, 136 S. Ct. 2160 (2016)).
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reasonable suspicion to subject Wildasin to an investigative detention based 

on the tip provided by the named witness and Trooper Hoffman’s 

corroboration of the identifying factors regarding Wildasin’s vehicle. 

Following a stipulated bench trial, Wildasin was convicted of the abovedescribed offenses and sentenced to serve sixty months of intermediate 

punishment, followed by thirty-six months of probation, and ordered to pay 

fines, totaling $1,150.00. Wildasin filed a timely Notice of Appeal and a courtordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on 

appeal.

On appeal, Wildasin raises the following questions for our review:

I. Was the detention of [Wildasin] in violation of the Fourth 

Amendment and Article 1 Section 8 of the Pennsylvania 

Constitution?

II. Was the evidence presented to the trial court insufficient to 

support a conviction for restriction on alcoholic beverages under 

section 3809(a) of the Pennsylvania Motor Vehicle Code?

III. Was the evidence presented to the trial court insufficient to 

support a conviction for carelss [sic] driving under section 3714(a) 

of the Pennsylvania Motor Vehicle Code?

Brief for Appellant at 5 (capitalization omitted).

In his first claim, Wildasin challenges the trial court’s Order denying his 

Motion to suppress. See id. at 9-18. Wildasin alleges that his rights under 

the Fourth Amendment of the United States Constitution and Article I, Section 

8 of the Pennsylvania Constitution, were violated when police subjected him 

to an investigatory detention without the requisite level of suspicion to detain 
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him, and as a result, any evidence obtained following the detention should 

have been suppressed. See id. at 10-14, 21. He argues that Officer David 

and Officer Morehead detained him without reasonable suspicion of him having 

engaged in criminal activity. See id. at 10-13. Wildasin further alleges that

Trooper Hoffman lacked reasonable suspicion to detain Wildasin when she 

arrived at the scene. See id. at 13-14. Wildasin argues that the tip from the 

McDonald’s employee made no mention of his condition or the quality of his

driving. See id. at 14. Therefore, according to Wildasin, the police had no 

information to conclude that criminal activity was occurring. See id.

Wildasin alleges, in the alternative, that the officers required probable 

cause to detain him, because the charge they were investigating, restrictions 

on alcoholic beverages, was not “investigable.” See id. at 14-18. He argues 

that the police were responding to an “open container” violation pursuant to

75 Pa.C.S.A. § 3809(a). See id. at 14-16. Wildasin states that because when 

he was detained, he was no longer operating his vehicle, and his vehicle was 

not located on a Pennsylvania highway, no evidence to charge him under 

section 3809 could have been discovered. See id. at 17. He argues that 

because the police did not have probable cause, their detention of him was 
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illegal and any evidence obtained as a result must be suppressed. See id. at 

17-18, 21.

3

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is whether the factual 

findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. When reviewing 

such a ruling by the suppression court, we must consider only the 

evidence of the prosecution and so much of the evidence of the 

defense as remains uncontradicted when read in the context of 

the record. Where the record supports the findings of the 

suppression court, we are bound by those facts and may reverse 

only if the legal conclusions drawn therefrom are in error. 

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. 

Evans, 153 A.3d at 327 (citations, quotation marks, ellipses, and brackets 

omitted).

“The Fourth Amendment of the Federal Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect individuals from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). There are three categories of interactions 

between police and a citizen: 

The first of these is a “mere encounter” (or request for 

information)[,] which need not be supported by any level of 

suspicion, but carries no official compulsion to stop or to respond. 

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3 While Wildasin argues that analysis of the stop must begin with the inquiries 

by Officers David and Morehead, no testimony regarding their interaction with 

Wildasin was provided at the suppression hearing. Thus, we address 

Wildasin’s claims with Trooper Hoffman’s testimony. See Commonwealth 

v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016) (noting this Court is “limited 

to reviewing only the evidence presented at the suppression hearing when 

examining a ruling on a pre-trial motion to suppress.”) (citation omitted).
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The second, an “investigative detention[,]” must be supported by 

a reasonable suspicion; it subjects a suspect to a stop and a period 

of detention, but does not involve such coercive conditions as to 

constitute the functional equivalent of an arrest. Finally, an arrest 

or “custodial detention” must be supported by probable cause.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation 

omitted).

Upon review, Trooper Hoffman testified that a named informant

provided information that Wildasin was driving with an open can of beer 

between his legs, and further gave Wildasin’s license plate number, the color 

and a description of his vehicle, a description of his physical features, and the 

direction that his vehicle was heading. See N.T., 2/13/17, at 6-7. Trooper 

Hoffman stated that, less than fifteen minutes later, she found the described 

vehicle in the driveway of Wildasin’s residence and corroborated the details 

given by the witness. See id. at 8-9, 13. She identified Wildasin, who was 

standing next to his vehicle and was exhibiting signs of intoxication, including 

slurred speech, glassy and bloodshot eyes, and an odor of alcohol. See id. at 

8-10. Trooper Hoffman testified that when she arrived, Officer David and 

Officer Morehead were already at Wildasin’s home, each with their own police 

vehicles. See id., at 8-10, 17-18. Trooper Hoffman stated that Wildasin was 

not placed in handcuffs or otherwise detained, and none of the officers were 

brandishing a weapon. See id. at 9-10. Trooper Hoffman advised Wildasin 

that she was investigating an open container violation and engaged in 
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questioning targeted at determining whether Wildasin had engaged in criminal 

activity. See id. at 10-11.

These circumstances would suggest that Wildasin was not subjected to 

such coercive conditions as to constitute the functional equivalent of an arrest.

Therefore, Trooper Hoffman’s inquiry constitutes an investigative detention. 

Compare Commonwealth v. Martin, 705 A.2d 887, 891 (Pa. Super. 1997)

(finding an investigative detention where three uniformed officers approached 

the defendant, advised him that he was suspected of illegal activity, and 

subjected him to questioning), with Commonwealth v. Hannon, 837 A.2d 

551, 554 (Pa. Super. 2003) (finding an arrest where the defendant was 

“ordered out of the car at gunpoint and restrained with handcuffs.”). 

Therefore, in order for Trooper Hoffman’s initial detention to be constitutional,

she needed to have reasonable suspicion that criminal activity was afoot.

4

See Martin, 705 A.2d at 892.

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4 We are not convinced by Wildasin’s argument that the police officers required 

probable cause to detain him because the criminal offense they were 

investigating, restrictions on alcoholic beverages, was not “investigatable.” 

See Brief for Appellant at 14-18. To the contrary, upon further investigation 

of Wildasin’s vehicle, the police could have reasonably expected to find the 

open beer can witnessed by the McDonald’s employee. Unlike other traffic 

infractions that have been found not investigatable, such as failure to maintain 

a single lane, see Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. 

Super. 2010), or failure to yield to an emergency vehicle, see 

Commonwealth v. Busser, 56 A.3d 419, 420 (Pa. Super. 2012), an open 

container violation requires additional physical evidence, i.e., the “open 

container,” which may be discovered after the vehicle is stopped.
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Here, the tip from the named witness, combined with Trooper Hoffman’s 

corroboration of the description of Wildasin’s vehicle and her observation that 

Wildasin was exhibiting signs of intoxication, provided reasonable suspicion 

for Trooper Hoffman to conduct an investigative detention. See 

Commonwealth v. Barber, 889 A.2d 587, 594-96 (Pa. Super. 2005) (stating 

that police had reasonable suspicion where they received a tip from an 

identified source stating that a man was drinking a beer while driving a van in 

a parking lot, and giving a description of the man, his vehicle, the license plate 

number, and the vehicle’s location, and police corroborated the tip by 

responding to the location and identifying a vehicle and a man matching the 

description given by the source). Accordingly, Trooper Hoffman’s

investigatory detention of Wildasin was constitutional.

We will address Wildasin’s sufficiency of the evidence claims together. 

Wildasin challenges the sufficiency of the evidence for his convictions of

restriction on alcoholic beverages and careless driving under sections 3809(a) 

and 3714(a), respectively, of the Pennsylvania Motor Vehicle Code. See Brief 

for Appellant at 18-20. Wildasin alleges that the Commonwealth failed to 

prove two elements of 3809(a): that Wildasin (1) possessed an open alcohol 

container, (2) while driving on a highway. Id. at 19-20. Under section 

3714(a), careless driving, Wildasin alleges that the Commonwealth failed to 

prove that he drove his vehicle “in careless disregard for the safety of persons 

or property.” Id. at 18-19.
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We apply the following standard of review when considering a challenge 

to the sufficiency of the evidence:

[W]hether[,] viewing all the evidence admitted at trial in the 

light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying the above test, we 

may not weigh the evidence and substitute our judgment for the 

fact-finder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant’s guilt 

may be resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of fact may 

be drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the finder of fact[,] while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, or part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

75 Pa.C.S.A. § 3809(a), in relevant part, states, “an individual who is 

an operator ... in a motor vehicle may not be in possession of an open alcoholic 

beverage container or consume ... an alcoholic beverage in a motor vehicle 

while the motor vehicle is located on a highway in this Commonwealth.” 75 

Pa.C.S.A. § 3809(a). Therefore, the Commonwealth was required to prove

that Wildasin (1) operated a vehicle, (2) on a Pennsylvania highway, (3) while 

in possession of or consuming an alcoholic beverage. See id. Highway is 

defined as
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[t]he entire width between the boundary lines of every way 

publicly maintained when any part thereof is open to the use of 

the public for purposes of vehicular travel. The term includes a 

roadway open to the use of the public for vehicular travel on 

grounds of a college or university or public or private school or 

public or historical park. 

Id. § 102. 

The evidence, viewed in a light most favorable to the Commonwealth, 

establishes that the McDonald’s employee witnessed Wildasin in possession of 

an open alcoholic beverage while driving, immediately prior to entering a 

Pennsylvania highway. See N.T., 8/17/17, at ¶ 3, Exhibit 5. Less than fifteen 

minutes later, Trooper Hoffman found an open alcoholic beverage container 

within Wildasin’s vehicle, see N.T., 2/13/17, at 11, and Wildasin admitted that 

he had just returned from driving to McDonalds, see N.T., 8/17/17, at ¶ 5, 

Exhibit 5. Therefore, the evidence is sufficient to establish that Wildasin 

operated his vehicle on a Pennsylvania highway while in possession of an open 

alcoholic beverage. See Melvin, 103 A.3d at 39-40 (stating that “[t]he 

Commonwealth may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial evidence.”). 

In order to sustain a conviction under 75 Pa.C.S.A. § 3714(a), the 

Commonwealth must prove that the defendant drove “a vehicle in careless 

disregard for the safety of persons or property.” See id. 

Here, the evidence, viewed in a light most favorable to the 

Commonwealth, establishes that Wildasin drove, with a young child in the 

vehicle, while consuming an alcoholic beverage. Therefore, the evidence is
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sufficient to sustain Wildasin’s conviction of 75 Pa.C.S.A. § 3714(a). See 

Melvin, supra.

Judgment of sentence affirmed. 

Judge Kunselman joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/23/2018