J-A09019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER JOSEPH VASQUEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 835 MDA 2022

Appeal from the Judgment of Sentence Entered May 2, 2022

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0004712-2020

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.: FILED AUGUST 31, 2023

Appellant, Christopher Joseph Vasquez, appeals from the judgment of 

sentence entered on May 2, 2022, following his bench trial convictions for 

three counts of driving under the influence (DUI) of a controlled substance.

1

 

We affirm.

The trial court set forth the facts and procedural history of this case as 

follows:

In the early morning hours of August 6, 2020, Officer Nicholas 

Grecco of the Northern Lancaster Regional Police Department was 

traveling north on Route 72, and observed a vehicle[] approaching 

in the southbound lane with its high beam headlights activated. 

The operator then dimmed the high beam headlights and Officer 

Grecco saw that one of the headlights on the approaching vehicle 

was not functioning. Upon looking in his rear-view mirror after 

the vehicle passed, Officer Grecco saw that the vehicle did not 

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1 75 Pa.C.S.A. §§ 3802(d)(2) (DUI - impaired ability), 3802(d)(1)(i) (DUI 

controlled substance – schedule 1), and 3802(d)(iii) (DUI controlled substance 

– metabolite), respectively. 
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have any working registration lights. As a result of the 

nonoperative lights. Officer Grecco made a U-turn to follow the 

vehicle, and after approximately two miles, initiated a traffic stop; 

he also noted the operator failed to use a turn signal when pulling 

over.

After making contact with the operator, Officer Grecco noticed the 

odor of marijuana emanating from the vehicle. As requested, the 

operator handed over his Pennsylvania driver’s license identifying 

him as [Appellant] when Officer Grecco saw that Appellant’s eyes 

were glassy. Officer Grecco then returned to his vehicle and ran 

Appellant’s license, confirming it was valid and that Appellant had 

no outstanding warrants. Upon his return, Officer Grecco asked 

Appellant to exit the vehicle, and if Appellant would consent to a 

search of the vehicle. Appellant advised that there was nothing 

illegal in the vehicle and consented to a search of the vehicle. 

During his search, Officer Grecco found a marijuana roach in a 

small compartment to the left of the steering wheel. When the 

search was complete, Officer Grecco informed Appellant what he 

found, and wanted to make sure [Appellant] was not impaired [if 

Officer Grecco were not] going to take him into [] custody for 

[DUI. Officer Grecco] asked [Appellant] if he would submit to field 

sobriety testing; Appellant consented.

Officer Grecco then guided Appellant through the horizonal gaze 

nystagmus (“HGN”), walk and turn, one leg stand, and lack of 

convergence sobriety tests, and Appellant failed the HGN, walk 

and turn, and lack of convergence sobriety tests. At that time, 

based on the [failure to use] a turn signal [during the traffic stop], 

the odor of marijuana emanating from the vehicle, the marijuana 

roach, and the failure of three out of four field sobriety tests, 

Officer Greco placed Appellant under arrest for suspected DUI.

On June 8, 2021, Appellant, through counsel, filed a pre-trial 

motion to suppress evidence based on a lack of probable cause of 

impairment. On September 23, 2021, a suppression hearing was 

held [] wherein Appellant argued that Officer Grecco lacked 

probable cause to arrest Appellant for DUI because there was 

insufficient evidence of intoxication and impaired driving behavior. 

Specifically, Appellant argued that the results of the HGN field 

sobriety test were insufficient in determining probable cause for 

arrest for DUI. At the suppression hearing, the Commonwealth 

argued that current case law holds that the results of the HGN test 

can be used for determining probable cause for arrest. Following 

argument, [the trial court] denied Appellant’s motion to suppress. 
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On February 4, 2022, following a non-jury trial, [ ] Appellant was 

found guilty of [the aforementioned crimes]. Appellant was found 

not guilty of disorderly conduct. On May 2, 2022, Appellant was 

sentenced to three to [23] months’ incarceration. 

Trial Court Opinion, 9/20/2022, at 1-3 (quotations, footnotes, record citations, 

and some parentheticals omitted). This timely appeal resulted.2

On appeal, Appellant presents a sole issue for our review:

Did the court below err by finding that probable cause existed to 

arrest [Appellant] for a violation of [75 Pa.C.S.A. §] 3802 of the 

[M]otor [V]ehicle [C]ode and declining to suppress the results of 

chemical testing on his blood and the observations of a drug 

recognition expert?

Appellant’s Brief at 9 (numbering omitted).

Appellant generally argues that Officer Grecco lacked probable cause to 

arrest Appellant for DUI of a controlled substance. Id. at 17-30. Appellant 

asserts that the totality of the circumstances “leading up to the field sobriety 

tests” were not sufficient to justify a belief that he was incapable of safe 

driving. Id. at 19. Appellant contends that “[t]he facts established by the 

Commonwealth during this portion of the stop included: a malfunctioning 

headlight, a malfunctioning license plate light, [the failure to use a turn signal] 

when [Appellant] pulled over after the officer activate[d] his lights behind him, 

the odor of marijuana ‘emanating’ from the vehicle, and the presence of a 

marijuana roach found in the vehicle during a consen[sual] search[.]” Id. at 

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2

 Appellant filed a notice of appeal on May 31, 2022. On June 3, 2022, the 

trial court ordered Appellant to file a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on 

June 24, 2022. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) 

on September 20, 2022. 
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19 (record citations omitted). More specifically, citing our Supreme Court’s 

decisions in Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021) and 

Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), Appellant opines 

that “[i]n light of widespread prescription and use of medical marijuana, the 

smell thereof – without more – is insufficient to establish probable cause for 

a warrantless search of a motor vehicle.” Id. at 23. Further, Appellant 

contends that “field sobriety tests did not establish probable cause where none 

existed before.” Id. at 25. Appellant acknowledges that “the rules of evidence 

do not apply in an inquiry into probable cause” and concedes that “even 

though it may be inadmissible to prove someone guilty, a suppression court 

may consider an officer’s testimony regarding [the] HGN [sobriety test] when 

deciding whether there was probable cause to arrest.” Id. at 27. Appellant 

asserts, however, that Officer Grecco’s testimony about the field sobriety tests 

did not support a finding of probable cause to arrest because he conducted 

the tests initially to detect alcohol impairment rather than marijuana, 

Appellant advised the officer that he had a medical condition or “a leaky 

retina,” Appellant completed the one-leg-stand test without incident, and that 

asking for clarification on the walk-and-turn test did not equate to impairment. 

Id. at 25-30. Appellant asserts that Officer Grecco “effectively took 

[Appellant] into custody before administering field sobriety tests by informing 

him he would be arrested if he did not perform them.” Id. at 18. 

Our Supreme Court previously determined the standard of review 

governing an order denying a motion to suppress:
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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. 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 [trial] court [] 

below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations 

and quotations omitted).

“[T]his Court [has] held that a police officer must have probable cause 

to support a [] stop where the officer's investigation subsequent to the stop 

serves no investigatory purpose relevant to the suspected Vehicle Code 

violation.” Commonwealth v. Venable, 200 A.3d 490, 498 (Pa. Super. 

2018) (internal citation, quotations and original brackets omitted). 

Furthermore, we have recently observed:

Any technical traffic violation (supported by probable cause) 

legitimizes a stop, even if it is merely a pretext for some other 

investigation. See Whren v. United States, 517 U.S. 806 

(1996). “During a traffic stop, the officer may ask the detainee a 

moderate number of questions to determine his identity and to try 

to obtain information confirming or dispelling the officer's 

suspicions.” Commonwealth v. Harris, 176 A.3d 1009, 1020 

(Pa. Super. 2017) (citation and internal quotation marks omitted). 

“[I]f there is a legitimate stop for a traffic violation ... additional 

suspicion may arise before the initial stop's purpose has been 
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fulfilled, then, detention may be permissible to investigate the 

new suspicions.” Id. (citation omitted). This further detention 

must be supported by reasonable suspicion[.]

Commonwealth v. Burger, 2023 WL 4348334, at *5 (Pa. Super. 2023) 

(unpublished memorandum).3 

Here, there is no dispute that the officer had probable cause to conduct 

a traffic stop for suspected violations of the Motor Vehicle Code. See

Appellant’s Brief at 20 (Appellant “concedes that the lighting violations 

provided Officer Grecco with a valid basis to stop his vehicle.”). Thus, we 

must examine whether the investigating officer had reasonable suspicion to 

further detain Appellant. See Commonwealth v. Dabney, 274 A.3d 1283, 

1293 (Pa. Super. 2022) (An officer must have reasonable suspicion to detain 

a DUI suspect to conduct field sobriety tests). 

This Court has recognized that field sobriety tests are “generally 

accepted methods for ascertaining alcohol or drug impairment at the time of 

a traffic stop.” Commonwealth v. Salter, 121 A.3d 987, 996 (Pa. Super. 

2015). More specifically, field sobriety tests

are grounded in theories which link an individual's lack of 

coordination and loss of concentration, with intoxication. This 

inter-relationship is also recognized in what is generally accepted 

as the common indicia of intoxication, within the understanding 

and experience of ordinary people. In fact, non-expert testimony 

is admissible to prove intoxication where such testimony is based 

upon the witness' observation of the defendant's acts and speech 

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3

 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the 

Superior Court filed after May 1, 2019, may be cited for their persuasive 

value).
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and where the witness can opine as to whether the defendant was 

[intoxicated].

Id. (citation omitted). 

However, this Court has also recognized that subsequently “failing these 

tests is not a requirement for a determination of probable cause.” Salter, 

121 A.3d at 997, citing Commonwealth v. Slonaker, 795 A.2d 397, 402 

(Pa. Super. 2002) (“[T]he law is well-settled that reasonable grounds to arrest 

does not require the failure of field sobriety tests.”). “Nonetheless, performing 

poorly may be sufficient for a finding of impairment.” Id., citing 

Commonwealth v. Downing, 739 A.2d 169, 173 (Pa. Super. 1999) 

(“[Downing] demonstrated his impairment by doing poorly on three field 

sobriety tests.”). “Even if [an] inability to perform [sobriety tests] could have 

other explanations, this circumstance, alone, does not make the officer's 

decision to arrest on suspicion of DUI unreasonable.” Id. at 997-998. “The 

applicable standard for determining probable cause calls for a totality of 

circumstances analysis, not a mechanical consideration of specific factors” 

and, furthermore, “[i]t is the facts and circumstances within the personal 

knowledge of the police officer that frames the determination of the 

existence of probable cause.” Id. at 995 (citations omitted; emphasis in 

original). “[I]t is well[-]established that probable cause to arrest can be 

supported by the existence of evidence that is inadmissible at trial” and an 

officer “trained in the administration of the HGN test, [is] permitted to rely on 

his observations gained from that procedure to support his conclusion that [an 
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offender] was driving under the influence of a controlled substance.” 

Commonwealth v. Weaver, 76 A.3d 562, 567 (Pa. Super. 2013) (citation 

omitted). Finally, our Supreme Court has held “that the odor of marijuana 

alone does not amount to probable cause to conduct a warrantless search of 

a vehicle but, rather, may be considered as a factor in examining the totality 

of the circumstances.” Barr, 266 A.3d at 44.

In this case, the trial court determined:

Here, before Officer Grecco requested consent to search 

Appellant’s vehicle, he observed Appellant’s failure to use a turn 

signal to turn after the traffic stop was initiated. [Officer Grecco 

testified that such action is] “an indicator of – could be an indicator 

of DUI according to the National Highway Traffic Safety 

Administration.” Further, after approaching Appellant’s vehicle[,] 

Officer Grecco smelled an odor of marijuana emanating from the 

vehicle, and saw that Appellant’s eyes were glassy, both indicators 

of intoxication. After informing Appellant of the odor of marijuana, 

Officer Grecco asked if there was anything illegal in the vehicle to 

which Appellant replied there was not. At this point in the 

interaction, Officer Grecco abandoned the investigation 

concerning the traffic code violations and began an independent 

investigation into possible DUI. As required, Officer Grecco 

articulated specific observations, which in light of his experience 

and training, reasonably inferred that Appellant may be 

intoxicated and impaired. 

Trial Court Opinion, 9/20/2022, at 8 (record citations omitted). The trial court 

further rejected Appellant’s implication “that Officer Grecco relied solely on 

the smell of marijuana [for] probable cause to arrest” Appellant. Id. Instead, 

Appellant consented to a search of the vehicle which revealed a marijuana 

roach that “was relatively fresh.” Id. at 9 (record citation omitted). This 

discovery, in turn, led to the initiation of field sobriety tests. Id. Appellant 
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performed poorly on three of the four field sobriety tests conducted. Id. at 

11 (“Here, while Appellant completed the field sobriety tests, Officer Grecco 

observed that Appellant showed four of six possible indicators of impairment 

when performing the HGN test, two out of eight indicators of impairment 

performing the walk and turn test[,] and failed two of three passes used for 

the lack of convergence test.”). Thus, the trial court ultimately determined 

that “[w]ith consent to search, and consent to participate in field sobriety 

testing, Officer Grecco found additional indicators of impairment when he 

found the marijuana roach and when Appellant failed three of four field 

sobriety tests” and “[u]sing the facts and circumstances within his personal 

knowledge, and his training as a law enforcement officer, Officer Grecco 

correctly determined that probable cause of impairment existed to support 

Appellant’s arrest for DUI.” Id.

We agree with the trial court’s assessment. Initially, as stated earlier, 

we note that Appellant does not challenge the legality of the traffic stop. See

Appellant’s Brief at 20 (Appellant “concedes that the lighting violations 

provided Officer Grecco with a valid basis to stop his vehicle.”). Once Officer 

Grecco initiated a valid traffic stop, he thereafter acquired the requisite 

reasonable suspicion to further detain Appellant, including Appellant’s failure 

to use a turn signal when pulling over during the valid traffic stop, Appellant’s 

glassy eyes as indica of intoxication, and the odor of marijuana emanating 

from the vehicle wherein Appellant was the only traveler. Also, there is no 

dispute that Appellant subsequently agreed to a voluntary search of his 
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vehicle. Id. at 24 (Appellant “consented to a search of his vehicle.”). That 

search uncovered a partially burnt marijuana joint inside the vehicle that the 

officer described, based upon his experience and training, as “relatively fresh.” 

Taken together, the facts and circumstances known to Officer Grecco, in light 

of his training and experience, gave him the requisite reasonable suspicion to 

believe that Appellant recently ingested marijuana, which justified further field 

sobriety tests. Dabney, supra. Thereafter, Appellant failed three of the four 

field sobriety tests, which this Court has found sufficient for a finding of 

impairment, even if Appellant offered other excuses for his poor performance. 

Downing, supra. As such, in summation, we conclude that Officer Grecco 

had reasonable suspicion to detain Appellant for further investigation after 

initiating a valid traffic stop and that Appellant’s poor performance on 

subsequent field sobriety tests gave Officer Grecco probable cause to arrest 

Appellant for DUI. Accordingly, the trial court did not err by denying 

suppression. Hence, Appellant’s sole appellate issue lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/31/2023