J-S67036-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CORY MITCHELL

Appellant No. 193 EDA 2016

Appeal from the Judgment of Sentence December 10, 2015

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0000634-2013

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 12, 2016

Appellant Cory Mitchell appeals from the Judgment of Sentence 

entered on December 10, 2015, in the Court of Common Pleas of 

Montgomery County, which, sitting as finder of fact in a non-jury trial, found 

Appellant guilty of five DUI charges arising out of a single incident.1 

Appellant contends the suppression court erroneously determined officers 

had probable cause to arrest him. Following a careful review, we affirm.

The trial court aptly has set forth the facts derived from the officers’ 

suppression hearing testimony as follows:

____________________________________________

1 75 Pa.C.S.A. §§ 3802(a)(1), (c), (d)(1)(i), (d)(1)(iii), and (d)(3), 

respectively. 
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On July 20, 2012, Montgomery Township Patrol Officer 

Jake Beebe was involved in a motor vehicle accident with 

[Appellant]. Hatfield Township Police Department was contacted 

to conduct a nonpartisan investigation of the accident. Hatfield 

Township Patrol Officer Jefferey[2] Richardson conducted an 

investigation and determined that Officer Beebe was at fault for 

the accident. 

Montgomery Township Patrol Officer David Dunlap, a 28 

year veteran with the Police Department, also responded to the 

scene of the accident. Upon speaking with [Appellant], Officer 

Dunlap immediately noticed his slurred speech and the odor of 

alcohol on his breath. Officer Dunlap asked [Appellant] if he had 

been drinking. [Appellant] admitted that he previously 

consumed three beers and that he finished his last beer about 

forty-five minutes prior to the accident. 

Next, Officer Dunlap requested that [Appellant] perform 

field sobriety tests. Officer Dunlap gave [Appellant] instructions 

on how to perform five different field sobriety tests. After each 

set of instructions, [Appellant] performed the test to the best of 

his ability. [Appellant] passed an alphabet test. [Appellant] 

failed a numerical countdown test by failing to following [sic] 

instructions. [Appellant] also failed a Horizontal Gaze 

Nystagmus test (“HGN”), a walk and turn test and a one leg 

stand test. Subsequently, Officer Dunlap placed [Appellant] 

under arrest for DUI and transported [Appellant] to Lansdale 

Hospital for a blood test.[3]

On October 7, 2014, [Appellant] filed the present Motion to 

Suppress. On December 5, 2014, this Court began a bifurcated 

hearing to decide the motion. The hearing was concluded on 

March 23, 2015.

Trial Court Order Sur: Suppression, filed 4/16/2015, at 1-2. 

____________________________________________

2 The suppression court also spells Officer Richardson’s first name “Jeffery” 

in suppression order, see infra. 

3 Appellant’s BAC was .18 and the presence of THC (the abbreviation for 

Tetrahydrocannbinol, the active ingredient in hashish and marijuana) also 

was detected therein. N.T. Sentencing, 12/10/15, at 5. 
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Based on the aforementioned testimony, the trial court denied 

Appellant’s pre-trial suppression motion, and after waiving his right to a jury 

trial, Appellant proceeded to a waiver trial based on stipulated facts on July 

10, 2015. The trial court convicted Appellant of the offenses indicated supra

and sentenced him to an aggregate term of ninety (90) days to five (5) 

years in prison.4 This timely, counseled appeal followed, and all Pa.R.A.P. 

1925 requirements have been met. In his appellate brief, Appellant raises 

the following issue for our review:

Whether the suppression court committed an error of law and/or 

abused its discretion in denying Appellant[‘s] [] motion to 

suppress his arrest where the Commonwealth’s evidence failed 

to establish probable cause for officers to believe that Appellant 

[] was in violation of 3802 of the Motor Vehicle Code. 

Brief for Appellant at 5.

This Court’s well-settled standard of review for challenges to the denial 

of a suppression motion is as follows:

[An appellate court's] 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, [the appellate court 

____________________________________________

4 The parties agreed that all of the charges merged for sentencing purposes 

with Count 5, DUI: Controlled Substances, 75 Pa.C.S.A. § 3802(d)(3). N.T. 

Sentencing, 12/10/15, at 5. 
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is] bound by [those] 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 courts below are subject to [ ] 

plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa.Super. 2015), 

reargument denied (Sept. 30, 2015), appeal denied, 135 A.3d 584 (Pa. 

2016) (citation omitted) (brackets in original). In addition, our scope of 

review from a suppression ruling is limited to the evidentiary record that was 

created at the suppression hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 

1087 (2013). Moreover, our standard of review is highly deferential with 

respect to the suppression court's factual findings and credibility 

determinations which are within its sole province. Commonwealth v. 

Shabezz, 129 A.3d 529, 532 (Pa.Super. 2015). 

Under constitutional jurisprudence, 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. 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. Fleet, 114 A.3d 840, 845 (Pa.Super. 2015) (citation 

omitted). 
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The relevant inquiry herein is whether Officer Dunlap had probable 

cause to arrest Appellant for DUI. “Both the United States and Pennsylvania 

Constitutions protect citizens against unreasonable searches and seizures. 

U.S. Const. Amend. IV; Pa. Const. Art. I, § 8. To be constitutionally valid, 

an arrest must be based on probable cause.” Commonwealth v. Smith,

979 A.2d 913, 916 (Pa.Super. 2009) (citation omitted), appeal denied, 993 

A.2d 901 (Pa. 2010). Probable cause exists where the facts and 

circumstances within a police officer’s knowledge are based upon reasonably 

trustworthy information and are sufficient to warrant one of reasonable 

caution in the belief that the suspect has committed or is committing a 

crime. In determining whether probable cause exists, this Court applies a 

totality of the circumstances test. Commonwealth v. Delvalle, 74 A.3d 

1081, 1085 (Pa.Super. 2013). “The question we ask is not whether the 

officer's belief was correct or more likely true than false. Rather, we require 

only a probability, and not a prima facie showing, of criminal activity.” 

Commonwealth v. Thompson, 604 Pa. 198, 203, 985 A.2d 928, 931 

(2009) (internal quotation marks and citations omitted, emphasis in 

original).

At the suppression hearing, Officer Beebe testified that as he was 

making a U-turn to pursue a vehicle with an equipment violation, a second 

vehicle collided with him and struck his bumper from behind. N.T.

Suppression, 12/5/14, at 6. He and his partner, Officer Andrew Benner, 
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initially approached Appellant, the driver of the second vehicle, to discern 

whether Appellant had been injured. Id. at 7.5 

Officer Dunlap testified that in his capacity as a police officer with the 

Montgomery Township Police Department for approximately thirty years, he 

had been involved in approximately five hundred to six hundred incidents 

involving an individual under the influence of drugs or alcohol. Id. at 21-22. 

He had training in field sobriety testing and Horizontal Gaze Nystagmus 

(HGN) testing as well. Id. at 23. Upon his arrival at the scene, Officer 

Dunlap was informed by Officer Benner that he may wish to speak with 

Appellant as it appeared to Officer Benner Appellant had been drinking. Id. 

at 52, 62. Officer Dunlap approached Appellant to discuss the circumstances 

surrounding the motor vehicle accident and “immediately detected an odor 

of alcoholic beverage on his breath when talking to him” and noticed his 

speech was “a little slurred.” Id. at 27-28. When Officer Dunlap asked 

Appellant if he had been drinking, the latter admitted he had and indicated 

he had “maybe three beers earlier” the last of which he had consumed about 

forty-five minutes before the accident. Id. at 29. Based upon Appellant’s 

admission, Officer Dunlap asked Appellant to perform various field sobriety 

tests. Id. 

____________________________________________

5 This encounter was captured by the patrol vehicle’s camcorder and played 

for the suppression court. Id. at 8, 13. 
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While Appellant was able to recite the alphabet, he did so 

“deliberately” and “methodically.” When asked to count backward from 69 

to 53, Appellant did not follow Officer Dunlap’s instructions and instead 

counted back to 52. Id. at 30-31. Officer Dunlap performed three tests as 

part of the HGN after each of which he detected nystagmus, which indicated 

to him “there’s alcohol involved and possible impairment.” Id. at 31-35. 

When Officer Dunlap had Appellant complete the “walk-and-turn-test,” he 

noticed Appellant had trouble maintaining his balance. Id. at 35-37. 

Finally, Officer Dunlap remarked that Appellant had difficulty completing the 

“one-leg stand test.” Id. at 38-40. Based upon the entire interaction he 

had with Appellant, Officer Dunlap opined Appellant was under the influence 

of alcohol and could not drive safely and placed him under arrest for DUI. 

Id. at 40-41, 61. Officer Dunlap then transported Appellant to Lansdale 

Hospital so a chemical test could be performed. Id. at 40-41.

In support of its finding that Officer Dunlap testified credibly and had 

probable cause to believe Appellant was driving under the influence of 

alcohol and to subsequently arrest him, the suppression court reasoned as 

follows: 

Here, Officer Dunlap spoke with [Appellant] and 

immediately noticed the odor of alcohol on his breath. By way of 

[Appellant’s] admission, Officer Dunlap learned that [Appellant] 

had recently consumed alcohol. Officer Dunlap then 

administered five different field sobriety tests, which assisted 

him in determining whether [Appellant] was intoxicated. Officer 

Dunlap observed signs of impairment on four of the five field 

sobriety tests. Based on his extensive training and experience, 
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his observations of impairment and [Appellant’s] admission, 

Officer Dunlap determined that [Appellant] was incapable of 

safely driving due to the influence of alcohol. Subsequently, 

Officer Dunlap arrested [Appellant] for DUI.

[Appellant] asks this [c]ourt to place particular weight on 

the observations, or lack thereof, of a police officer who was 

unavailable to testify at this hearing. In support of this position, 

[Appellant] submitted the accident report created by Officer 

Jeffrey Richardson. Officer Richardson’s report, which 

determined the cause of the accident, contains no mention of 

[Appellant] being intoxicated. After this incident, Officer 

Richardson retired and cannot be located. Accordingly, Officer 

Richardson did not testify at the hearing. [Appellant] argues 

that due to Officer Richardson’s absence, this [c]ourt should 

infer that he would have testified that [Appellant] was not 

intoxicated. This [c]ourt believes that such an inference has 

little effect on the inquiry of whether probable cause did or did 

not exist. Therefore, this [c]ourt finds Officer Dunlap credibly 

had probable cause to believe that [Appellant] was DUI and the 

arrest of [Appellant] was lawful.

Trial Court Order Sur: Suppression, filed 3/4/16, at 3. 

Appellant maintains that “[w]hile arguably, standing alone, Officer 

Dunlap’s claimed observations could be sufficient to establish probable 

cause, closer examination of those observations and the conclusions drawn 

therefrom demonstrates that they are not reliable.” Appellant also states it 

is undisputed that he “was involved in an accident that was caused entirely 

by the negligence of Montgomery Township rookie officer Beebe, and that 

Appellant [ ] admitted to drinking three beers earlier in the day.” Brief for 

Appellant at 14. Appellant proceeds to challenge the credibility of Officer 

Dunlap’s observations, viewing them in a light most favorable to him, and 

making much of the fact that Officer Richardson ultimately determined the 

motor vehicle accident had not been his fault. Id. at 14-18. 
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Upon our review of the record, we conclude the suppression court's 

finding that police had probable cause to arrest Appellant is supported by the 

record and that the totality of the circumstances, including Officer Dunlap's 

observations viewed in the light of his experience, support its legal 

conclusions. Officer Dunlap initially approached Appellant to ascertain his 

condition after a motor vehicle accident, at which time he discerned the odor 

of alcoholic beverage on his person and observed behavior indicative of one 

driving under the influence of alcohol. Officer Dunlap confirmed his belief 

upon performing the aforementioned field sobriety tests which provided him 

with probable cause subsequently to place Appellant under arrest. 

Accordingly, Appellant's issue affords him no relief.6

____________________________________________

6 Appellant filed with this Court a post-submission communication pursuant 

to Pa.R.A.P. 2501(b) wherein he argues the United States Supreme Court’s 

recent decision in Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed.2d 

560 (filed June 23, 2016) is instructive herein. Therein, three cases were 

consolidated for argument to determine whether a motorist may be deemed 

to have consented to submit to a blood test on pain of committing a criminal 

offense. The Supreme Court ultimately held that while no warrant is required 

for a police officer to administer a field breathalyzer test to a suspected 

drunk driver, either a search warrant or a recognized exception thereto is 

necessary before blood may be drawn for the purpose of chemical testing. 

However, the Birchfield Court reaffirmed the constitutionality of an officer’s 

decision to administer field sobriety tests which, in turn, provide probable 

cause for the officer to arrest the driver after he or she administers those 

tests if he or she finds the driver has failed them. In the matter sub judice, 

the basis of Appellant’s appeal is not that his consent to a blood test had 

been coerced by a police officer’s warnings provided pursuant to Implied 

Consent Law, but rather that Officer Dunlap lacked probable cause to arrest 

him. In fact, Appellant acquiesced at the stipulated bench trial that based 

(Footnote Continued Next Page)
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Judgment of Sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/12/2016

(Footnote Continued) _______________________

upon the test results, there was "[n]o argument as to his guilt. . . .” N.T. 

Trial, 7/10/15, at 4. 
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