J-S46038-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY P. MURRAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2809 EDA 2018

Appeal from the Judgment of Sentence Entered April 17, 2018

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

No(s): CP-51-CR-0010478-2017

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM PER CURIAM: FILED DECEMBER 10, 2019

Appellant, Timothy P. Murray, appeals from the judgment of sentence 

of 72 hours to six months of confinement, which was imposed after his 

conviction at a bench trial for driving under the influence (“DUI”) of controlled 

substance (first offense).1 After careful review, we affirm.

On the night of June 2, 2017, Appellant was arrested by Philadelphia 

police after a deputy sheriff had observed him driving erratically and 

dangerously. On October 18, 2017, at his trial before the Municipal Court 

Division,

2 Appellant made an oral motion “to suppress the stop, arrest, and 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa. C.S. § 3802(d)(2) (“The individual is under the influence of a drug or 

combination of drugs to a degree which impairs the individual’s ability to safely 

drive, operate or be in actual physical control of the movement of the 

vehicle.”).

2 Docket Number MC-51-CR-0015948-2017.
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search” of Appellant and “any blood results of a chemical test” on the basis 

that “the sheriff’s deputies who initiated the stop lacked jurisdiction[.]” N.T., 

10/18/2017, at 4-5. In response, the Commonwealth called Deputy Sheriff 

Shawn Roberts to testify. Id. at 5. Deputy Roberts testified that, on June 2, 

2017, at about 9:30 P.M., he “was working the bike unit patrolling” around 

500 Broad Street in Philadelphia, in the vicinity of the Philadelphia Family 

Court Building and the Justice Juanita Kidd Stout Center for Criminal Justice, 

when he witnessed “a black Lexus swerving in and out of lanes[,]” then 

“nearly” strike his vehicle, and “proceed to clip a curb.” Id. at 6-7. He 

continued that he followed the vehicle for “about ten minutes” and saw it make 

“erratic movements” like “stopping, braking, going, failing to yield to red 

lights, stopping at green lights, [and] proceeding through crosswalks while 

the light was red.” Id. at 7. Deputy Roberts explained that, after he indicated 

to Appellant that he should pull over, Appellant continued for “three more 

blocks” before he stopped his vehicle and the deputy and his partner could 

approach. Id. at 8. Deputy Roberts testified that they “approached the 

vehicle . . . to assess the situation trying to make sure he was all right and 

trying to make[] sure he wasn’t having a medical emergency, or anything like 

that.” Id.

The witness continued: “Based on my training and experience and 

based on whether [Appellant] was responding to me, his mannerisms, his 

body movements, and everything like that, and the fact that he couldn’t focus, 

that he was sweating, dipping out a little bit, and just wasn’t fully there[,]” he 
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concluded that Appellant “was not able to” operate a motor vehicle safely. Id.

at 9. Deputy Roberts additionally stated that he had previously seen 

“numerous” people under the influence of narcotics while “patrolling 

outside[.]” Id. The deputy added that police responded to the location of the 

vehicle stop “within five minutes.” Id. 

The following exchange occurred on cross-examination:

Q. Fair to say you have not received any specific training in 

DUI?

A. No. I do have DUI training from the police academy. I have 

the same training the police receive.

Q. You have not received any training as a drug recognition 

expert; have you?

A. No.

Id. at 13.

After the conclusion of Deputy Roberts’ testimony, Appellant contended 

that sheriffs have “a little more authority to stop than an average citizen 

unless they observe either a felony in their presence or a breach of the peace.” 

Id. at 22. Appellant cited to Commonwealth v. Leet, 641 A.2d 299 (Pa. 

1994), as supporting authority. N.T., 10/18/2017, at 22. He continued:

[S]heriffs do not have the authority to make a stop unless it’s

within their regular duties as a sheriff, such as securing this

courtroom, or serving warrant[s] and writs, securing the

courthouse, they don’t have the statutory authority or the

Commonwealth authority to make a stop like this unless they 

observe a breach of the peace or a felony in their presence. 

I don’t see anything here that constitutes a breach of the

peace.

Id. (emphasis added).
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At the conclusion of the suppression hearing, the Philadelphia Municipal 

Court denied Appellant’s motion to suppress. Id. at 27. Appellant was 

immediately tried and convicted of DUI, id. at 35, and he requested a de novo

trial before the Court of Common Pleas. See Trial Court Opinion, filed 

December 6, 2018, at 1. On February 5, 2018, following a bench trial before 

the Court of Common Pleas (“trial court”), Appellant was again convicted of 

DUI.

On April 19, 2018, Appellant filed a post-sentence motion requesting 

that the trial court “review the transcript and decision of the suppression 

hearing in Municipal Court in order that [Appellant]’s right of appeal of the 

suppression issue be preserved for review in Superior Court.” Post-sentence 

Motion for a New Trial, 4/19/2018, at 3 ¶ 8 (citing Philadelphia County 

Criminal Division Rule 630(H); Commonwealth v. Johnson, 146 A.3d 1271 

(Pa. Super. 2016)). Appellant again argued, inter alia, the lack of jurisdiction 

on the part of the deputy sheriffs to stop him. Specifically, Appellant asserted:

Deputy Sheriff Roberts did not have jurisdiction to stop, seize, 

detain, or arrest [Appellant]. 75 Pa.C.S.A. § 6308 provides

jurisdiction for police officers to stop vehicles to investigate

violations of the motor vehicle code. However, a sheriff is not a

police officer. In Commonwealth v. Dobbins[, 934 A.2d 1170, 

1171 (Pa. 2007)], the Supreme Court of Pennsylvania held that 

“sheriffs have only such independent investigatory authority to 

seek out evidence of wrongdoing that is committed outside their 

presence as is expressly authorized by statute.” No statute 

expressly authorizes sheriffs to conduct a ten-minute long 

investigation in order to seek out evidence of a motor vehicle 

violation. In the instant case [Deputy] Sheriff Roberts testified 

that he “basically followed [Appellant] around monitoring the 

situation until we had enough evidence to stop the vehicle” and 
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when asked how long he followed the vehicle, he responded 

“[p]robably about ten minutes.” By following [Appellant] around 

for ten minutes in order to garner enough evidence to stop his 

vehicle, the [Deputy] Sheriff exceeded his jurisdiction.

Id. at 5 ¶ 13 (emphasis omitted) (some citations omitted). On September 19, 

2018, the trial court denied the motion. On September 25, 2018, Appellant 

filed this timely direct appeal.3

Appellant presents the following issues for our review:

1. Where [Appellant] claimed that [he] was stopped and 

detained by sheriffs who lacked the jurisdiction and authority to 

do so, but where suppression was denied on that basis in the 

Philadelphia Municipal Court, did not the Court of Common Pleas 

err in not granting a new trial upon review of the suppression 

motion hearing?

2. Was not the evidence insufficient to prove beyond a 

reasonable doubt that [Appellant] was under the influence of a 

drug (as that term is meant by 75 Pa.C.S. § 3802(d)(2)) or 

combination of drugs to a degree which impaired his ability to 

safely drive, operate or be in actual physical control of the 

movement of the vehicle?

3. Was not the verdict against the weight of the evidence in 

that the evidence failed to prove that the defendant was under the 

influence of a drug (as that term is meant by 75 Pa.C.S. 

§ 3802(d)(2)) or combination of drugs to a degree which impaired 

his ability to safely drive, operate or be in actual physical control 

of the movement of the vehicle, where the evidence failed to prove 

[Appellant]’s guilt in this regard to such a degree as to cast such 

serious doubt upon the validity of [Appellant]’s conviction that his 

conviction shocks the conscience?

Appellant’s Brief at 5-6 (trial court’s answers omitted).

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3 Appellant filed a statement of errors complained of on appeal on 

November 1, 2018, and an amended statement of errors on November 28, 

2018. The trial court entered its opinion on December 6, 2018.
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Our scope of review from a suppression ruling is limited to the 

evidentiary record created at the suppression hearing. Commonwealth v. 

Fulton, 179 A.3d 475, 487 (Pa. 2018).

At no time before the Municipal Court or the trial court did Appellant

argue that the deputy sheriffs lacked authority to stop his vehicle because

they did not have training in motor vehicle law equivalent to that of a police

officer. The only argument made before the courts below was that the deputy 

sheriffs lacked jurisdiction to stop Appellant’s vehicle because they failed to 

witness a breach of peace in their presence and, instead, followed Appellant 

for several minutes to garner evidence to stop him.4 The first time that 

Appellant argued that the deputy sheriffs lacked the requisite training was in 

his brief filed with this Court. Appellant’s Brief at 21-22. Failure to raise the 

issue of inadequate training before the Municipal Court and trial court results 

in waiver. See Commonwealth v. Napold, 170 A.3d 1165, 1168 (Pa. Super. 

2017) (“issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal”); see also Pa.R.A.P. 302(a). Accordingly, we

affirm the denial of Appellant’s motion to suppress.

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4 We note that there was more than sufficient evidence to establish that 

Appellant committed violations of the motor vehicle code in the presence of 

the deputy sheriffs. As Deputy Sheriff Roberts testified, he witnessed 

Appellant “swerving in and out of lanes”; nearly strike the deputy sheriffs’ 

vehicle; clip a curb; and “mak[e] erratic movements, stopping, braking, going, 

failing to yield to at red lights, stopping at green lights, proceeding through 

crosswalks while the light was red.” N.T., 10/18/2017, at 7.
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As for Appellant’s two other issues on appeal, insufficiency and weight 

of the evidence, after a thorough review of the record, the briefs of the parties, 

the applicable law, and the well-reasoned opinion of the Honorable

William J. Mazzola, we conclude Appellant’s remaining challenges merit no 

relief. The trial court opinion comprehensively discusses and properly 

disposes of those questions. See Trial Court Opinion, filed December 6, 2018, 

at 1-16.

For the foregoing reasons, we affirm the denial of the suppression 

motion. Consequently, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/10/19