The opinion
J-A23017-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE PAUL BURKETT :
:
Appellant : No. 1717 MDA 2023
Appeal from the Judgment of Sentence Entered November 14, 2023
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000281-2021
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
MEMORANDUM BY OLSON, J.: FILED: JANUARY 28, 2025
Appellant, Wayne Paul Burkett (Appellant), appeals pro se from the
judgment of sentence following his jury trial convictions for driving under the
influence (DUI) of alcohol (general impairment (BAC1 .08-.10) – second
offense) and DUI (metabolite of a controlled substance – second offense).2
We affirm.
The trial court summarized the facts of this case as follows:
[O]n the evening of March 23, 2021, [Appellant] was driving his
pickup truck northbound on Hill Valley Road, State Route 747, in
Shirley Township, Huntingdon County. He was observed by
Pennsylvania State Trooper Duane Mock, who was also driving
northbound on State Route 747 some distance behind. Trooper
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1 The abbreviation “BAC” refers to blood alcohol content.
2 75 Pa.C.S.A. §§ 3802(a)(2) and 3802(d)(1)(iii). After the jury verdict, the
trial court separately found Appellant guilty of the summary motor vehicle
code violations of failure to keep right and failure to drive within a single lane.
75 Pa.C.S.A. §§ 3301(a) and 3309(1), respectively.
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Mock’s testimony was that he observed [Appellant’s] truck cross
over the double-yellow centerline, and in response, he sped up to
catch up with [Appellant’s] truck and obtain its license plate
number. As he came up behind [Appellant’s] truck just prior to a
right-hand bend, he observed [Appellant] swerve over the double
yellow line a second time. At that point, Trooper Mock activated
his emergency lights and conducted a traffic stop of [Appellant’s]
truck. Based on information obtained [from Appellant] and
observations made by Trooper Mock, Trooper Mock believed
[Appellant] to be driving under the influence of alcohol and
marijuana. Notably, in response to questions from Trooper Mock,
[Appellant] disclosed that he had a valid [M]edical [M]arijuana
[Act3 (MMA)] card, a prescription for medical marijuana, and that
he had ingested medical marijuana earlier that day. Trooper Mock
administered standard field sobriety tests to [Appellant], both on
his own and with the assistance of another state trooper who
responded to the scene, Trooper Cole Walters. Trooper Mock then
arrested [Appellant] for DUI, and an evidentiary blood draw was
performed. Laboratory testing revealed that [Appellant] had a
[BAC of 0.088 [%] and there was Delta-9 Carboxy THC
(metabolite of [marijuana]) present in his blood in the amount of
6.3 ng/ml.
Trial Court Opinion, 2/13/2024, at 1-2 (footnote omitted).
Procedurally, the case progressed as follows. On July 7, 2021, Appellant
filed a counseled omnibus pretrial motion seeking, inter alia, the dismissal of
some of the criminal charges against him, as well as suppression of evidence.
Important to this appeal, counsel for Appellant argued that Appellant “had
used his medical marijuana as prescribed, in compliance with the [MMA], and
that therefore his medical marijuana was not a Schedule I drug for purposes
of the DUI statute.” Id. at 4 (footnote omitted). Appellant also argued that
Trooper Mock lacked probable cause to effectuate the traffic stop and
subsequently made materially false statements of fact in his affidavit of
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3 35 P.S. § 10231.101, et seq.
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probable cause in support of charges filed against Appellant. Id. at 12-14.
As such, Appellant maintained that the evidence obtained as a result of the
traffic stop required suppression. Following a hearing, the trial court
dismissed some of the criminal charges the Commonwealth had lodged
against Appellant.4 The trial court, however, denied suppression. Following
a trial commencing on March 13, 2023, a jury convicted Appellant of the
aforementioned crimes, and the trial court also convicted Appellant of the two
summary traffic violations as set forth above. On July 6, 2023, the trial court
sentenced Appellant to an aggregate term of 11 to 23 months of incarceration,
followed by 18 months of license suspension, plus fines and the costs of
prosecution. This timely, pro se appeal followed.5
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4 The trial court dismissed the charges of DUI alcohol (general impairment,
incapable of driving safely – second offense), DUI controlled substance
(general impairment, incapable of driving safely – second offense), and DUI
combination of alcohol and controlled substance (general impairment,
incapable of driving safely – second offense). 75 Pa.C.S.A §§ 3802(a)(1),
3802(d)(2), and 3802(d)(3), respectively. The Commonwealth also later
withdrew a charge of careless driving, 75 Pa.C.S.A. § 3717(a).
5 Appellant was represented by privately retained counsel throughout trial
and sentencing. On July 10, 2023, counsel filed a praecipe to withdraw with
Appellant’s consent. On July 11, 2023, the trial court conducted a hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) and
permitted Appellant to proceed pro se. Thereafter, Appellant filed a timely
pro se, post-sentence motion on July 17, 2023. See Pa.R.Crim.P. 720(A)(1)
(“[A] written post-sentence motion shall be filed no later than 10 days after
imposition of sentence); see also 1 Pa.C.S.A. § 1908 (Whenever the last day
of the filing period falls on a Sunday, such day shall be omitted from the
computation). Appellant and the Commonwealth filed various post-sentence
submissions thereafter. More specifically, Appellant filed a pro se writ of
habeas corpus and the Commonwealth filed a motion for reconsideration of
(Footnote Continued Next Page)
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Although Appellant purports to raise five issues on appeal, his
arguments amount to two distinct claims, both of which he raised before the
trial court. See Appellant’s Brief at 4-5 and 16. First, Appellant argues that
because he is a medical marijuana patient, he was “immune from arrest,
prosecution, and penalty for the offense of DUI [c]ontrolled [s]ubstance –
[m]etabolite[, under] 75 [Pa.C.S.A.] § 3802(d)(1)(iii).” Id. at 16. Appellant
maintains that it was undisputed that on “March 23, 2021[, he] was a
[m]edical [m]arijuana patient, in compliance with the MMA” and that he
“asserted his immunity when he advised the officer of his serious medical
condition” and “was taking his prescription as prescribed.” Id. at 22.
Appellant claims that he “was not impaired by the use of” medical marijuana,
he did not abuse the use of medical marijuana, and he was capable of safe
driving. Id. “Appellant asserts [] he is not prohibited from operating or
being in actual physical control of the movement of a motor vehicle with a
metabolite from” medical marijuana in his bloodstream. Id. at 23. Appellant
claims that his due process rights were violated and “it is fundamentally unfair,
and [] violates all concepts of decency and fair play to arrest, prosecute, and
convict[] [A]ppellant, a [medical marijuana] patient with a serious medical
____________________________________________
sentence. The trial court held hearings and ultimately denied post-sentence
relief by order entered on November 14, 2023. On December 12, 2023,
Appellant filed a pro se notice of appeal. The Commonwealth did not appeal.
On December 21, 2023, the trial court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied in a timely manner by filing his pro se Rule 1925(b)
statement on January 10, 2024. On February 13, 2024, the trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a).
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condition, for a serious first degree misdemeanor, and remove him from his
necessary prescribed treatment, by putting him in prison for 11 to 23 months,
when he was in strict compliance with the MMA, and taking his lawfully
prescribed medication.” Id. at 25.
The Vehicle Code provides, in pertinent part, that:
[a]n individual may not drive, operate or be in actual
physical control of the movement of a vehicle under any of
the following circumstances:
(1) There is in the individual's blood any amount of a:
(i) Schedule I controlled substance, as defined in the
[Controlled Substances Act (CSA)];
* * *
(iii) metabolite of a substance under subparagraph (i) or
(ii).
75 Pa.C.S.A. § 3802(d)(1). “The fact that a person charged with [DUI] is or
has been legally entitled to use alcohol or controlled substances is not a
defense to a charge of [DUI].” 75 Pa.C.S.A. § 3810.
In Commonwealth v. Dabney, 274 A.3d 1283 (Pa. Super. 2022), we
explained:
The MMA was enacted effective May 17, 2016. Under the MMA,
medical marijuana is defined as marijuana for certified medical
use as set forth in the MMA. 35 P.S. § 10231.103.
“Notwithstanding any provision of law to the contrary, use or
possession of medical marijuana as set forth in [the MMA] is lawful
within this Commonwealth.” 35 P.S. § 10231.303. However, it is
unlawful to use medical marijuana except as provided in the MMA.
35 P.S. § 10231.304(a). The MMA does not prevent civil or
criminal penalties for “[u]ndertaking any task under the influence
of medical marijuana when doing so would constitute negligence.”
35 P.S. § 10231.1309(1).
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Dabney, 274 A.3d at 1288–1289. As such, we opined that “medical
marijuana remains a Schedule I controlled substance for purposes of Section
3802(d)(1),” that “no conflict exists between the MMA and the Vehicle Code,”
and that “[t]he Vehicle Code and the CSA render it illegal to drive with any
amount of a Schedule I controlled substance in one's blood.” Id. at 1291,
citing 75 Pa.C.S.A. § 3802(d)(1)(i). Ultimately, we concluded that
Section 3802(d)(1)(i) prohibits driving with marijuana in one's
blood, notwithstanding the MMA. The MMA takes precedence over
the CSA related to “the growth, processing, manufacture,
acquisition, transportation, sale, dispensing, distribution,
possession and consumption of medical marijuana permitted
under” the MMA. 35 P.S. § 10231.2101. Therefore, compliance
with the MMA will not constitute a crime under the CSA. However,
what Section 3802(d)(1) prohibits is not “growth, processing,
manufacture, acquisition, transportation, sale, dispensing,
distribution, possession or consumption of medical marijuana”
but rather driving with a controlled substance in one's blood. The
MMA does not take precedence over laws not specified in 35 P.S.
§ 10231.2101. See 35 P.S. § 10231.1309(1) (allowing civil and
criminal penalties for negligently undertaking tasks under the
influence of medical marijuana). As such, [a defendant] is not
facing a criminal conviction for the legal use of his medical
marijuana [when] prosecuted for driving after such use [and] the
MMA, CSA, and Vehicle Code can be read in harmony.
Having found that Section 3802(d)(1)(i) applies to all marijuana,
even medical marijuana, we likewise conclude[d] that Section
3802(d)(1)(iii) applies to metabolites of all marijuana, including
medical marijuana. First, subparagraph (iii) references
subparagraph (i), which has no exception for medical marijuana.
Second, [] it is illegal to drive with the active substance of
marijuana in one's blood. Therefore, it is not absurd or
unreasonable that it is also illegal to drive with a metabolite of
that substance in one's blood.
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Id. at 1291–1292 (internal quotations, case citations, footnotes, and original
brackets omitted; emphasis in original). For the foregoing reasons, we
summarily reject Appellant’s first claim that he was immune from arrest and
prosecution for DUI controlled substance – metabolite under Section
3802(d)(1)(iii).
Next, Appellant argues that the trial court erred by denying suppression
when it failed to consider the totality of the circumstances in determining that
the police had probable cause to stop Appellant. Appellant’s Brief at 26-33.
Appellant has consistently maintained that there was only evidence that he
crossed over the double yellow line on a single occasion, when “the officer’s
conduct of rapidly approaching [A]ppellant’s vehicle at night, from behind, at
a high rate of speed with high beams activated, tailgating too close, while
[A]ppellant was entering a right curve in the road, distracting [A]ppellant
causing him to swerve onto the double yellow center line of the roadway.” Id.
at 29 (footnote omitted); see also Trial Court Opinion, 2/13/2024, at 2-3
(“[Appellant] has consistently maintained, since the time he was first
contacted by Trooper Mock, that the only reason he swerved was that Trooper
Mock’s rapid approach from behind surprised and scared him.”). Appellant
argues that “Trooper Mock proceeded … on a hunch [Appellant] may be
impaired, after observing him leaving the parking lot of the Hill Valley Hotel[]
Bar and Grill” and then “distracted” Appellant, thereby “essentially creat[ing]
the probable cause [police] needed to stop him.” Appellant’s Brief at 31.
Appellant challenges Trooper Mock’s credibility, highlighting the fact that
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Trooper Mock stated in the affidavit of probable cause that Appellant swerved
over the double yellow line on five occasions, but testified at trial that
Appellant only swerved twice, and video evidence taken from the police cruiser
Mobile Vehicle Recorder (MVR) only shows a single, or the last, alleged
infraction. Id. at 13-15.
Our standard of review regarding suppression is well-settled:
We consider only the evidence from the defendant's witnesses
together with the evidence of the prosecution that, when read in
the context of the entire record, remains uncontradicted. The
suppression court's findings of fact bind an appellate court if the
record supports those findings. The suppression court's
conclusions of law, however, are not binding on an appellate court,
whose duty is to determine if the suppression court properly
applied the law to the facts.
We therefore apply a de novo review over the suppression court's
legal conclusions.
Where a traffic stop is based on the observed violation of the
Vehicle Code or an otherwise non-investigable offense, an officer
must have probable cause to make a constitutional vehicle stop.
A police officer has probable cause to stop a motor vehicle if the
officer observes a traffic code violation, even if it is a minor
offense.
Commonwealth v. Gurung, 239 A.3d 187, 190–191 (Pa. Super. 2020)
(internal citations, quotations, and brackets omitted).
“It is within the suppression court's sole province as factfinder to pass
on the credibility of witnesses and the weight to be given to their testimony.
The suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Byrd, 185 A.3d
1015, 1019 (Pa. Super. 2018) (citation omitted).
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“Upon all roadways of sufficient width, a vehicle shall be driven upon the
right half of the roadway[.]” 75 Pa.C.S.A. § 3301(a). “A vehicle shall be
driven as nearly as practicable entirely within a single lane and shall not be
moved from the lane until the driver has first ascertained that the movement
can be made with safety.” 75 Pa.C.S.A. § 3309(1). We have previously
determined that a police officer had probable cause to believe there was a
violation of the Motor Vehicle Code provision requiring drivers to maintain their
vehicle within a single lane, where an officer observed a vehicle cross the
double yellow center line on two separate occasions while negotiating a curve.
See Commonwealth v. Feczko, 10 A.3d 1285, 1292 (Pa. Super. 2010).
In this case, the trial court determined that “Trooper Mock testified that
he observed a vehicle from some distance ahead of him swerve over the
double-yellow centerline into the opposite lane and then back over into its own
lane of travel” but that video footage taken from the police cruiser “MVR does
not show the initial swerve[.]” Suppression Court Opinion, 7/22/2022, at 2-3.
The trial court reviewed the MVR video footage at the suppression hearing and
subsequently noted that Appellant “entered a right-hand bend” and “took the
bend wide” and crossed over the double yellow lane for five seconds before
fully returning to his own lane. Id. at 4. Such evidence established probable
cause to believe that there was a violation of the Motor Vehicle Code in order
to justify the traffic stop.
Moreover, regarding credibility, the trial court made the following
observations pertaining to Trooper Mock:
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Trooper Mock made a number of statements in his affidavit of
probable cause that were false. These statements were openly
discussed and admitted to by Trooper Mock at the hearing on
[Appellant’s] omnibus pretrial motion. See N.T., 12/13/2021, at
14-15, 20 [and] 21-23 (Trooper Mock noting that in his affidavit
he wrote that [Appellant] crossed the centerline five times, in one
of his reports he wrote that upon initial contact he smelled
marijuana and alcohol emanating from [Appellant’s] vehicle, and
in his “sobriety test details” report he repeated the notation about
odors emanating from the vehicle and further wrote that he
smelled alcohol and marijuana on [Appellant’s] person; in reality,
[Appellant] crossed the centerline two times, Trooper Mock did
not detect any odors upon initial contact, and he only smelled
alcohol on [Appellant’s] person after [Appellant] exited his
vehicle). Trooper Mock could not explain any of these errors;
rather, he could only state that he had made mistakes in preparing
his reports and was “upset about it.” Id.
* * *
At the time he made the traffic stop, Trooper Mock was rather
green. He had graduated from the police academy approximately
eight months prior, and had only begun field training and begun
working on his own three months prior. [Id.] at 10. While he
could provide no insight into why or how he made the
misstatements in question, he was clearly embarrassed and
frustrated with himself for having made them, and did not want
to repeat the experience of having to testify about such mistakes
in the future (i.e., he had already resolved to do better). And the
misstatements were all of a nature that would be easy to make if
the details of two separate incidents were inadvertently conflated
during drafting or [if] a report from a prior incident [was] used as
a model for the report of this incident. In other words, there was
no evidence that Trooper Mock acted knowingly, intentionally, or
with reckless disregard for the truth in making these
misstatements. Rather, they are simply the product of
inexperience and a need to pay closer attention to detail in
preparing reports for multiple cases.
* * *
Two crossings of the centerline, as opposed to five, is sufficient to
establish probable cause to stop a vehicle for failure to keep right
and failure to drive within a single lane – the two offenses
[Appellant] was originally stopped for.
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Trial Court Opinion, 2/13/2024, at 12-14 (footnotes and superfluous
capitalization omitted).
Based upon our standard of review, applicable law, and review of the
certified record in this matter, we discern no abuse of discretion or error of
law in denying Appellant’s request for suppression of evidence. The
suppression court determined that Trooper Mock made mistakes with regard
to his subsequent report and the affidavit of probable cause because of his
inexperience, but ultimately credited Trooper Mock’s testimony that Appellant
drove over the yellow double centerline twice. Hence, while there was
conflicting evidence regarding the number of times Appellant’s vehicle crossed
the yellow double centerline, the suppression court was free to believe all,
part or none of the evidence and we will not usurp its decision. Moreover, one
of the motor vehicle violations was captured on a police MVR which the
suppression court viewed; hence, that violation was not subject to a
meaningful challenge. As such, we conclude that the suppression record
established probable cause to initiate a traffic stop for failure to keep right and
failure to drive within a single lane pursuant to 75 Pa.C.S.A. §§ 3301(a) and
3309(1), respectively. Accordingly, Appellant’s claim regarding suppression
does not warrant relief.
Judgment of sentence affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 1/28/2025
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