J-S64010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STEVEN LESLIE HARRIS

                            Appellant                 No. 3334 EDA 2015


          Appeal from the Judgment of Sentence entered July 22, 2015
               In the Court of Common Pleas of Chester County
               Criminal Division at No: CP-15-CR-0003632-2014




COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STEVEN LESLIE HARRIS

                            Appellant                 No. 3335 EDA 2015


              Appeal from the Judgment of Sentence July 22, 2015
                In the Court of Common Pleas of Chester County
               Criminal Division at No: CP-15-CR-0003633-2014


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 15, 2016



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       Appellant, Steven Leslie Harris, appeals from the judgment of sentence

imposed on July 22, 2015, in the Court of Common Pleas of Chester County

following his conviction of driving under the influence (“DUI”), possession of

a small amount of marijuana, possession of drug paraphernalia, aggravated

assault upon a police officer, and resisting arrest.1 Appellant contends the

trial court erred in denying his motion to suppress, in limiting evidence

relating to his mental treatment and behavior, and in instructing the jury

regarding Appellant’s mental status. Following review, we affirm.

       In its May 15, 2015 order denying Appellant’s motion to suppress and

in its December 17, 2015 Rule 1925(a) opinion, the trial court provided

detailed factual and procedural histories of this case. We incorporate those

histories herein as if fully set forth. Trial Court Order, 5/15/15, at 1 n. 2

(pp. 1-2)2 and Rule 1925(a) Opinion, 12/17/15, at 1-3. Briefly, on August

30, 2014 at approximately 12:44 a.m., Pennsylvania State Trooper Lori

Edgar (“Trooper Edgar”) was on DUI roving patrol in full uniform but in an

unmarked car in Chester County, when she observed Appellant operating his

vehicle slowly.     She followed Appellant’s vehicle and engaged her mobile

vehicle recordings (“MVR”) system for approximately a mile and one-half.

____________________________________________


1
  75 Pa.C.S.A. § 3802(d)(1); 35 Pa.C.S.A. § 780-113(a)(31) and § 780-
113(a)(32); and 18 Pa.C.S.A. § 2702(a)(3) and § 5104.
2
 Footnote 2 of the May 15, 2015 order begins on the first page of the order
and spans seven pages.



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Based on her training and her observations of Appellant’s vehicle, Trooper

Edgar concluded the operator of the vehicle might be under the influence of

alcohol or a controlled substance.        Believing further investigation was

warranted, she activated her lights and sirens to initiate a traffic stop.

      The traffic stop was conducted near an intersection in West Bradford

Township.     Trooper    Edgar   asked   Appellant   for    his   driver’s   license,

registration and insurance card.      When Appellant failed to produce the

registration, Trooper Edgar advised Appellant that she believed he was

smoking marijuana in the vehicle. When Trooper Edgar instructed Appellant

to exit the vehicle, he instead rolled up his window and locked the doors.

      A second trooper arrived on the scene but Appellant also ignored the

second trooper’s direction to exit the vehicle. Eventually, Appellant unlocked

the doors and was assisted in exiting his vehicle.         He then became more

uncooperative and combative.        When he began wrestling with Trooper

Edgar, the second trooper tased Appellant. Appellant yelled for the trooper

to tase him again and attempted to strike the trooper in the face.               The

trooper did tase Appellant again and Appellant was taken into custody. He

was charged with DUI and related offenses under one docket number and

with aggravated assault and related offenses under a separate docket

number. The two cases were consolidated before the trial court and before

this Court.




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        After his preliminary hearing and waiver of arraignment, Appellant

filed a motion to suppress, claiming the vehicle stop and vehicle search, as

well as the search of his person, were unlawful for lack of warrant and lack

of probable cause. Motion to Suppress, 2/2/15, at 1-2.

        At the suppression hearing conducted on April 16, 2015, Trooper

Edgar testified as to the events occurring before and after the traffic stop.

The video from the MVR system was shown during the hearing.          The trial

court denied the motion to suppress by order dated May 15, 2015. The case

proceeded to trial on June 2, 2015, with a jury returning a guilty verdict on

all charges.     On July 22, 2015, the trial court imposed an aggregate

sentence of three months and three days to 18 months in county prison,

followed by four years and thirty days of probation.           The trial court

subsequently modified the sentence to allow Appellant to participate in the

prison’s re-entry and work release programs at the warden’s discretion. This

timely appeal followed. Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant now asks this Court to consider three questions:

        1. Did the trial court err in denying [Appellant’s] Motion to
           Suppress where the contemporaneous video recording of
           [Appellant’s] driving clearly establishes that police had no
           authority or justification to stop his vehicle?

        2. Did the trial court abuse its discretion in limiting and
           excluding evidence regarding [Appellant’s] mental status and
           behavior, when [Appellant’s] intent was central to the
           resolution of the case, and when he and his mother had long,


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         relevant experience with the effects of his autism spectrum
         disorder?

      3. Did the trial court abuse its discretion in its instruction to the
         jury regarding consideration of [Appellant’s] mental status
         and intent, where that specific intent was the crux of the
         issue to be resolved by the jury?

Appellant’s Brief at 6.

      In his first issue, Appellant asserts trial court error for denying his

motion to suppress. This Court has recognized:

      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 is
      bound by those findings and may reverse only if the court's legal
      conclusions are erroneous.

Commonwealth v. (Patrick Scott) Jones, 121 A.3d 524, 526 (Pa. Super.

2015) (brackets omitted) (quoting Commonwealth v. (Curtis) Jones, 988

A.2d 649, 654 (Pa. 2010)).

      Appellant contends the video recording established that the officer

lacked authority or justification for stopping his vehicle based on his driving.

In its order denying suppression, the trial court stated:

      Trooper Edgar testified that she . . . observed [Appellant’s]
      vehicle sitting at the stop sign for approximately 45 seconds
      before proceeding through the intersection at three to five miles
      per hour.


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      Having observed [Appellant’s] vehicle traveling at an
      unreasonably slow speed in the early morning hours, Trooper
      Edgar turned her unmarked patrol vehicle around and activated
      the MVR system. Given the slow rate of speed of [Appellant’s]
      vehicle, Trooper Edgar was easily able to catch up to it. As
      [Appellant’s] vehicle approached the town of Marshallton,
      Trooper Edgar observed it weaving within the lane of traffic,
      braking, and failing to maintain a constant speed. Based on the
      trooper’s training and experience, she believed this conduct was
      indicative of an impaired operator warranting further
      investigation. After continuing to follow [Appellant’s] vehicle for
      approximately a mile and [a] half, Trooper Edgar activated her
      lights and siren to initiate a vehicle stop.      Although Trooper
      Edgar stated on her police radio that she was conducting a
      routine traffic stop, she testified that she stopped [Appellant’s]
      vehicle for the sole purpose of investigating whether he was
      impaired. The vehicle stop was initiated for suspected DUI and
      may have led to further incriminating evidence such as an odor
      of alcohol/drugs, glassy/blood-shot eyes, or slurred speech.
      Because the trooper neither observed [Appellant] commit a
      violation of the Motor Vehicle Code nor stopped the vehicle for
      any such violation, probable cause was not required to initiate
      the stop.      Rather, Trooper Edgar articulated specific facts
      establishing that she stopped [Appellant’s] vehicle for suspicion
      of DUI.      The trooper objectively pointed to specific and
      articulable facts leading to a suspicion of criminal activity.

Trial Court Order, 5/15/15, at 1, n. 2 (pp. 4-5).

      Our review confirms that the trial court’s factual findings are supported

by the record.    Appellant’s assertions that Trooper Edgar was following

Appellant’s car at a distance less than the driver’s manual “four second rule”

or that Appellant’s braking was appropriate in response to caution signs do

not change our conclusion. Appellant specifically challenges a statement by

the trial court that “no warning signs existed on the bridge where [Appellant]

displayed the aforementioned behavior.” Appellant’s Brief at 27. However,

Appellant acknowledges that the 15 mph sign in question is not on the

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bridge but rather before the bridge. Id. at 28. The additional sign on the

bridge designated a curve in the road. See id. at 29.

      We recognize, as did both the trial court and Trooper Edgar, that there

were signs along the roadway that would appropriately prompt a driver to

apply brakes to decrease speed. However, that does not account for all of

the braking or general slow travel or for the weaving with his lane of travel.

We agree with the trial court’s determination that Trooper Edgar’s testimony

was credible and that “when viewed objectively through the eyes of a

trained police office, the totality of [Appellant’s] behavior establishes

suspicion of DUI. A trained and experienced officer could reasonably infer

that based on the time of day coupled with his erratic driving that

[Appellant] may be operating his motor vehicle while intoxicated.”          Trial

Court Order, 5/15/15 at 1 n.2 (p. 5) (citing Commonwealth v. Holmes, 14

A.3d 89 (Pa. 2011) (citations to notes of testimony and exhibit omitted).

      Because we conclude that the suppression court’s factual findings are

supported by the record, we are bound by those findings.            Further, we

discern no error in the court’s legal conclusions, which we adopt and

incorporate herein by reference. See Trial Court Order, 5/15/15, at 1 n.2

(pp. 2-5). Appellant’s first issue fails.

      In his second issue, Appellant asserts the trial court abused its

discretion by limiting and excluding evidence regarding Appellant’s mental

treatment, status and behavior.             Appellant argues that preclusion of


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evidence of his autism spectrum disorder rendered him incapable of proving

his lack of criminal intent. As a challenge to the admissibility of evidence,

our standard of review is abuse of discretion. Braun v. Target Corp., 983

A.2d 752, 760 (Pa. Super. 2009). As this Court reiterated in Braun,

      Pennsylvania trial judges enjoy broad discretion regarding the
      admissibility of potentially misleading and confusing evidence.
      Relevance is a threshold consideration in determining the
      admissibility of evidence. A trial court may, however, properly
      exclude evidence if its probative value is substantially
      outweighed by the danger of unfair prejudice. Generally, for the
      purposes of this evidentiary rule, prejudice means an undue
      tendency to suggest a decision on an improper basis. The
      erroneous admission of harmful or prejudicial evidence
      constitutes reversible error.

Id. (citations and brackets omitted).

      As the trial court explained, Appellant was allowed to testify at trial

about his status and behavior.      Rule 1925(a) Opinion, 12/17/15 at 5-6

(quoting Notes of Testimony, 6/3/15, at 143-44).       However, limiting that

testimony and excluding testimony of Appellant’s mother relating to an

autism spectrum disorder was warranted under the circumstances. As the

trial court explained, Appellant did not provide the requisite notice of intent

to offer a mental health defense. Id. at 6 (citing R.Crim.P. 568). We find

no abuse of discretion in the trial court’s reasoning, which we adopt and

incorporate herein by reference. See id. at 4-8. Appellant’s second issue

does not provide any basis for relief.




                                     -8-
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      In his third issue, Appellant asserts trial court error stemming from the

instruction delivered in response to a question posed by the jury in the

course of its deliberations. As the trial court explained:

      During deliberation, the [c]ourt received several written
      questions from the jury, one of which stated as follows: “The
      defense started with a direction of prior mental health issues.
      The questioning stopped, but the jury was not instructed to
      consider or not consider the information.” (N.T., 6/4/15, at 38;
      Court Ex. 1). Before responding to the jury’s question, the
      [c]ourt called counsel to the courtroom and discussed it with
      them and obtained their respective positions regarding how the
      jury would be instructed.

      Because the evidence introduced in this case did not support a
      mental health defense[,] the [c]ourt returned the jurors to the
      courtroom and instructed them as follows: “There is no mental
      health diagnosis in the record. You are to consider all of the
      facts of record when deliberating on a verdict on any of the
      charges brought against [Appellant.]” (Id. at 54.)

Rule 1925(a) Opinion, 12/17/15, at 8-9.

      Our standard of review in assessing a trial court’s jury
      instructions is as follows:

         [W]hen evaluating the propriety of jury instructions, this
         Court will look to the instructions as a whole, and not
         simply isolated portions, to determine if the instructions
         were improper. We further note that, it is an
         unquestionable maxim of law in this Commonwealth that a
         trial court has broad discretion in phrasing its instructions,
         and may choose its own wording so long as the law is
         clearly, adequately, and accurately presented to the jury
         for its consideration. Only where there is an abuse of
         discretion or an inaccurate statement of the law is there
         reversible error.

      Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa. Super.
      2007) (quoting Commonwealth v. Kerrigan, 920 A.2d 190,
      198 (Pa. Super. 2007)).


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Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014).

       We agree with the trial court that the instructions as a whole, including

its response to the jury’s inquiry, were proper.        Again, as the trial court

recognized, there was no mental health diagnosis for the jury to consider.3

We find no abuse of discretion or inaccurate statement of law in the

instructions. We adopt, and incorporate herein by reference, the trial court’s

thorough discussion of this issue. Rule 1925(a) Opinion, 12/17/15, at 8-10.

Appellant’s third issue lacks merit.

       Judgment affirmed.        In the event of further proceedings, the parties

shall attach to their filings copies of the trial court’s May 15, 2015 Order and

its December 17, 2015 Rule 1925(a) Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016



____________________________________________


3
 The court acknowledged that Appellant’s mental health status was properly
considered for sentencing. Rule 1925(a) Opinion, 12/17/15, at 9-10.




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Circulated 10/31/2016 10:05 AM