J-S21041-25
2025 PA Super 182
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROY WILLIAM MARBERGER, IV :
:
Appellant : No. 2649 EDA 2024
Appeal from the Judgment of Sentence Entered November 29, 2023
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000100-2023
BEFORE: KUNSELMAN, J., KING, J., and FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED AUGUST 25, 2025
Roy William Marberger, IV, appeals nunc pro tunc from the judgment of
sentence imposed after the trial court found him guilty of driving both under
the influence (“DUI”) of a controlled substance and improper headlight usage. 1
Marberger was sentenced to seventy-two hours to six months of incarceration
on the DUI offense and received no further penalty at the latter crime.
Marberger challenges the sufficiency of the evidence underpinning his DUI
conviction, contending, inter alia, that the Commonwealth proffered no
evidence to demonstrate, with any particularity, the controlled substance
Marberger was alleged to have consumed. He additionally challenges the
reasonable suspicion and/or probable cause that underpinned the police
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1 See 75 Pa.C.S. §§ 3802(d)(2), 4302(a)(1), respectively.
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officers’ decisions to subject him to field sobriety testing and thereafter arrest
him. We affirm.
As thoroughly recounted by the trial court:
[o]n July 22, 2022, Pennsylvania State Trooper Ludwig Ogando []
and Pennsylvania State Trooper Thomas Kirk [] were on patrol in
Milford Township, Bucks County. During the patrol, Trooper Kirk
was acting as Trooper Ogando’s field training officer. At
approximately 3:30 a[.]m[.], Trooper Ogando observed a vehicle
driving without its headli[ghts] on and weaving on the roadway in
the oncoming lane of traffic near the intersection of John Fries
Highway and Commerce Drive, Milford Township, Bucks County.
Trooper Ogando signaled the driver of the vehicle to pull over and
stop, which he initially failed to do. The driver subsequently
stopped in the parking lot of a Wawa convenience store.
Trooper Ogando approached the vehicle and observed
[Marberger’s] jittery demeanor, and the Trooper noticed that
[Marberger’s] eyes were bloodshot, glassy, and had a slow
pupillary response to light. Trooper Ogando held his flashlight
slightly above [Marberger’s] eye level and observed that
[Marberger’s] pupils did not react quickly, unlike in other traffic
stops he had conducted where individuals’ eyes reacted to the
light by their pupils quickly constricting. Trooper Ogando noted
[Marberger] was “jittery” and would not sit still during their
encounter. When asked his destination, [Marberger] told Trooper
Ogando that he was coming from Norristown and was traveling
home. Although [Marberger] lived in Chester County and claimed
to be going home, he was, in fact, traveling in the opposite
direction of his home. This route, and [Marberger’s] explanation,
was illogical to Trooper Ogando.
Trooper Kirk exited the patrol vehicle and approached
[Marberger’s] vehicle on the passenger side. [Marberger]
appeared to be restless, fidgeting[,] and moving back and forth.
[Marberger] was very talkative, providing Trooper Ogando with
unnecessary information[,] and often repeating himself multiple
times. When asked straightforward questions, [Marberger]
rambled and discussed unrelated topics instead of providing a
clear and simple answer.
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Trooper Ogando and Trooper Kirk obtained [Marberger’s] driver’s
license and insurance information, returned to the patrol vehicle,
and discussed their observations of [Marberger]. Based on the
totality of circumstances, Trooper Ogando and Trooper Kirk
determined that they had reasonable suspicion that criminal
activity was afoot, thereby warranting asking [Marberger] to step
out of his vehicle for further investigation. When they approached
the vehicle a second time and asked [Marberger] if he minded
stepping out of his vehicle, [Marberger] responded in an
uncooperative manner, stating that he did mind stepping out of
the vehicle and that he would not do so. Trooper Ogando and
Trooper Kirk patiently and repeatedly requested [Marberger] to
exit his vehicle, but [Marberger] adamantly refused to do so for
approximately six to seven minutes prior to eventually complying.
At that point, based on their observations of [Marberger’s] speech,
eyes, physical movements, and overall demeanor, Trooper
Ogando and Trooper Kirk reasonably suspected that [Marberger]
was under the influence of a controlled substance. As a result,
they administered field sobriety tests. Trooper Ogando
administered a series of Standard Field Sobriety Tests (“SFSTs”)
including the horizontal gaze nystagmus (hereinafter “HGN[”)],
the walk and turn, and the one-leg stand. Each test, the trooper
noted, provides validated indicators of impairment due [to] a
blood[-]alcohol concentration (hereinafter “BAC”) of .08 or
higher[] or of a controlled substance.
Trooper Ogando explained and administered the HGN test on
[Marberger]. The HGN assesses equal tracking of the eyes and
equal pupil size. Signs of impairment in a HGN test are lack of
smooth pursuit, sustained nystagmus at maximum deviation, and
onset of nystagmus present at forty-five [] degrees. Trooper
Ogando observed [Marberger] to have a lack of smooth pursuit of
both eyes.
Trooper Ogando then explained and administered the walk[-
]and[-]turn [test] to [Marberger]. The walk[-]and[-]turn test
consists of a series of nine steps going in one direction, then
turning around and taking nine steps in the opposite direction.
During the test, [Marberger] stepped off of the line, missed
putting his heel to his toe, used his arms for balance, and spun in
the opposite direction of the direction to which he was instructed
to turn. Trooper Ogando then explained and administered the one-leg stand test. Signs of impairment in a one-leg stand test are an
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individual placing their foot down, hopping, swaying, or using their
arms for balance. During the test, [Marberger] placed his foot
down, used his arms for balance, and swayed while performing
the test.
[] Marberger frequently interrupted Trooper Ogando while he was
explaining the tests, as [Marberger] struggled to remain quiet.
[Marberger] was unable to follow simple instructions, and he did
not understand questions asked or the SFST demonstrations
despite them being explained to him multiple times. Trooper Kirk
found these behaviors to be indicators of impairment. Trooper
Ogando and Trooper Kirk believed [Marberger’s] impairment was
likely from a controlled substance, not alcohol. Accordingly,
Trooper Kirk proceeded with an Advanced Roadside Impairment
Driving Enforcement (hereinafter “ARIDE”) [evaluation] which
aids officers in detecting impairment from a controlled substance.
Trooper Kirk first administered the lack[-]of[-]convergence test,
where a subject is instructed to follow a pen held in front of his
face and moved toward the subject. From this movement, the
subject’s eyes will naturally want to cross; if they do not, it is
viewed as an indicator of intoxication. During the test,
[Marberger’s] left eye did not converge. Trooper Kirk also noted
[Marberger’s] eyes were glassy and bloodshot, and he had dilated
pupils with a slow response to light. Next, Trooper Kirk
administered the modified Romberg balance test which requires
the subject to maintain balance, follow directions, and estimate
the passage of a certain amount of time. Signs of impairment from
this test are eye tremors, body tremors, swaying, or improper
estimation of time. During the test, [Marberger] swayed front to
back and had eyelid tremors.
When Trooper Kirk inquired, [Marberger’s] story as to where he
was coming from and going to was “all over the place” from what
he had previously told Trooper Ogando. He told Trooper Kirk that
he was coming from Norristown and was going to AAA to get gas.
When asked, [Marberger] told Trooper Kirk that he had not used
any controlled substance. At some point during the police
encounter, [Marberger] informed Trooper Ogando and Trooper
Kirk that he had “nerve damage” due to multiple concussions.
Based on the totality of the circumstances, the observations of the
vehicle in motion, the personal contact, and the testing, there
were more validated clues than would normally be present with
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someone under the influence of alcohol or a controlled substance.
Based on their training and experience, Trooper Ogando and
Trooper Kirk concluded that [Marberger] was under the influence
of a controlled substance to a degree that rendered him incapable
of driving. Trooper Ogando placed [Marberger] under arrest for
DUI and read Pennsylvania Department of Transportation form
DL-26B to him. Trooper Ogando asked [Marberger] if he would
submit to a chemical blood test and in response, [Marberger]
asked if he had the right to remain silent. [Marberger] then
repeatedly ignored the issue of whether or not he would consent
to a blood draw, and Trooper Ogando found [Marberger’s]
responses, and lack thereof, to constitute a refusal to the chemical
blood test.
There was not any controlled substance or paraphernalia relating
to a controlled substance found in [Marberger’s] vehicle or on
[Marberger’s] person. [Marberger] never admitted to using any
controlled substance.
Trial Court Opinion, 12/11/24, 2-7 (footnotes omitted).
From this incident, Marberger was charged with five offenses. Prior to
trial, he filed an omnibus pre-trial motion that sought “suppression” of the
field sobriety tests, his arrest, and his refusal to submit to chemical testing.
See Omnibus Pretrial Motion, 3/13/23. In that motion, Marberger argued that
the troopers: (1) lacked “sufficient reasonable suspicion and/or probable
cause to direct [him] to take field sobriety tests”; (2) did not have “sufficient
probable cause” to effectuate an arrest; and (3) did not provide “proper
notice” to him as it pertains to his ability to refuse chemical testing. Id.
Ultimately, the court denied Marberger’s motion, and the matter proceeded to
a stipulated trial2 whereafter the court found Marberger not guilty of two of
____________________________________________
2 Marberger stipulated to the Commonwealth’s evidence. In particular, he
agreed that “if the troopers testified [at his trial], they would testify identically
(Footnote Continued Next Page)
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the five charged offenses. After further briefing, the court ultimately found
Marberger guilty of two out of the three remaining counts: (1) DUI of a
controlled substance; and (2) failing to use his headlights. The court
sentenced Marberger, approximately three months later, to the
aforementioned seventy-two hours to six months of incarceration.
Initially, Marberger filed an untimely notice of appeal, which this Court
quashed. See Order, 2/23/24. Nevertheless, he thereafter filed a successful
petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546,
which granted him the ability to directly appeal from his judgment of sentence
nunc pro tunc. After filing his new notice of appeal, Marberger subsequently
filed a statement of errors complained of on appeal pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b).
On appeal, Marberger presents three issues for review:
1. Was the evidence sufficient to find him guilty of DUI given
that: (1) he did not admit to using a drug; (2) no
paraphernalia was found; (3) he refused a blood test; and
(4) there was no other indicia that he was under the
influence of a drug or controlled substance?
2. Was the evidence sufficient to find him guilty of DUI when
the Commonwealth could not plead or prove what controlled
substance or drug he allegedly used?
3. Did the court err in denying his pre-trial motion where the
Pennsylvania State Police lacked reasonable suspicion
and/or probable cause to have him perform field sobriety
____________________________________________
to their testimony [at the suppression hearing.]” N.T. Trial, 7/13/23, at 16-
17.
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tests and there was not sufficient probable cause to arrest
him and transport him for chemical testing?
See Appellant’s Brief, at 2.3
Marberger’s first two claims challenge the sufficiency of evidence utilized
in convicting him of DUI.4 We employ a well-settled standard of review to
analyze such contentions:
the standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proof of proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test, the
entire record must be evaluated and all the evidence actually
received must be considered. Finally, the trier of fact[,] while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part[,] or none of the
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3 We note that Marberger’s brief violates Rule of Appellate Procedure 2119(a)
insofar as it presents three questions to be argued, but only contains two
argument sections. See Pa.R.A.P. 2119(a) (“The argument shall be divided
into as many parts as there are questions to be argued; and shall have at the
head of each part—in distinctive type or in type distinctively displayed—the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.”). Nevertheless, as issues one and two,
contained within the same section of his brief, both address sufficiency, it has
not impeded our review, and we address both contentions concurrently.
4 Marberger does not challenge his other conviction related to headlight usage.
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evidence.
Commonwealth v. Kim, 888 A.2d 847, 851-52 (Pa. Super. 2005) (citation
and brackets omitted).5 Moreover, we “consider all of the testimony that was
presented . . . without consideration as to the admissibility of that evidence.”
Commonwealth v. Smith,
568 A.2d 600, 603 (Pa. 1989). “Because
evidentiary sufficiency is a question of law, our standard of review is de
novo[,] and our scope of review is plenary.” Commonwealth v. Brooker,
103 A.3d 325, 330 (Pa. Super. 2014).
Marberger was found guilty of driving under the influence of a controlled
substance. The specific section he was convicted under prohibits an individual
from “driv[ing], operat[ing] or be[ing] in actual physical control of the
movement of a vehicle . . . [when t]he 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.” 75 Pa.C.S. § 3802(d)(2). In other words, “to convict a defendant
under this section, the Commonwealth must establish three elements: 1) that
the defendant drove; 2) while under the influence of a controlled substance;
and 3) to a degree that impairs the defendant’s ability to drive safely.”
Commonwealth v. Spence, 290 A.3d 301, 309 (Pa. Super. 2023). Rather
than per se criminality based on blood testing, see 75 Pa.C.S. § 3802(d)(1),
____________________________________________
5 Marberger’s brief does not contain, nor address, this standard of review.
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Section 3802(d)(2) distinctively attaches “criminal liability based specifically
on evidence of impairment.” Commonwealth v. Smith, 320 A.3d 674, 691
(Pa. Super. 2024).
Marberger’s argument is that “the Commonwealth has not provided
anything other than a raw opinion that [he] was under the influence of a drug.”
Appellant’s Brief, at 5. In particular, the “Commonwealth has not stated what
the identity of the drug was or provided any analysis to show that [he] was
under the influence of a drug as opposed to a non-drug that affected [him].”
Id. at 6. In effect, Marberger is suggesting that Section 3802(d)(2) requires
some evidentiary support for the specific controlled substance for there to be
a conviction, e.g., chemical testing, the recovery of drugs, residue, or
paraphernalia, or by admission. See id.; see also id. at 8 (Marberger
“believes that the Commonwealth is required to identify a controlled substance
or at least a class of controlled substances beyond a reasonable doubt to meet
its burden”).
In support of his position, Marberger cites several decisions of this Court
in which we concluded the evidence was sufficient, predicated on chemical
testing and/or admissions. Marberger concedes that, although the troopers
were qualified to provide lay testimony as to their observations of him on that
evening, they could not identify, with any particularity, a controlled substance
that he had consumed. See id. at 7-8. Instead, “[o]nly a toxicologist or
someone with similar expertise can offer such an identification.” Id. at 8.
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Nevertheless, the Commonwealth did not offer expert testimony on the
subject, which Marberger argues renders the evidence insufficient and entitles
him to relief. See id. We disagree.
We first note that “Section 3802(d)(2) does not require that any amount
or specific quantity of the drug be proven in order to successfully prosecute
under that section.” Commonwealth v. Williamson, 962 A.2d 1200, 1204
(Pa. Super. 2008). Instead, the Commonwealth is required to prove that,
while driving or operating a vehicle, the accused was under the influence of a
drug to a degree that impaired his ability to safely drive that vehicle. See
id.
Moreover, our Supreme Court has held that expert testimony is not mandatory
in every prosecution to establish that a defendant’s inability to drive safely
was caused by the ingestion of a controlled substance. See Commonwealth
v. Griffith,
32 A.3d 1231, 1238 (Pa. 2011). “[T]he need for expert testimony
in subsection 3802(d)(2) prosecution must be evaluated on a case-by-case
basis, taking into account not just the specific drug at issue, prescription or
otherwise, but also the nature and overall strength of the Commonwealth’s
evidence.”
Id. at 1239. Additionally, we emphasize that Section 3802(d)(2)
“does not limit, constrain, or specify the type of evidence that the
Commonwealth can proffer to prove its case.”
Id.
Finally,
“[i]n any ... criminal proceeding in which the defendant is charged
with a [DUI] ..., the fact that the defendant refused to submit to
chemical testing ... may be introduced in evidence along with
other testimony concerning the circumstances of the refusal.” 75
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Pa.C.S.[] § 1547(e). While no presumption of guilt automatically
arises from the refusal, the [fact-finder] may consider the refusal
“along with other factors concerning the charge.” Id. Otherwise,
one could use drugs, “drive under the influence of those drugs,
and avoid prosecution entirely simply by refusing a blood test. We
refuse to countenance this absurd result.” Commonwealth v.
DiPanfilo, 993 A.2d 1262, 1268 (Pa. Super. 2010) (footnote
omitted).
Commonwealth v. Caraballo, 325 A.3d 1025, 1031 (Pa. Super. 2024).
Recently, this Court held, in an unpublished memorandum, that “[t]he
Commonwealth is not required to prove what controlled substance is causing
a defendant’s impairment so long as there is evidence, even if circumstantial,
that the defendant is under the influence of a controlled substance.”
Commonwealth v. Seibert, 2024 WL 4794995, *2 (Pa. Super., filed Sept.
24, 2024) (unpublished memorandum) (828 MDA 2023). We find this
statement of law, directly on point to the present matter, to be persuasive. 6
Indeed, Seibert’s subsequent citation to DiPanfilo is instructive: “Rather
than insist on proof that may lie exclusively within Appellant’s own
bloodstream, which he refused to provide, we will instead turn to the totality
of the Commonwealth’s direct and circumstantial evidence.” Seibert,
2024
WL 4794995, at *2, citing DiPanfilo,
993 A.2d at 1268 (citation and footnote
omitted).
Despite Marberger’s assertion, this Court has affirmed, on sufficiency
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6 See Pa.R.A.P. 126(b)(2) (“Non-precedential decisions [from this Court filed
after May 1, 2019,] may be cited for their persuasive value.”).
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grounds, a Section 3802(d)(2) DUI conviction in which “[t]here was no
evidence of alcohol use and no drug paraphernalia was found. [Additionally,
the appellant] did not admit to using controlled substances.” Commonwealth
v. Harrington, 2020 WL 1245132, *1 (Pa. Super., filed Mar. 16, 2020)
(unpublished memorandum) (1841 EDA 2019) (quoting trial court opinion).
Here, there was ample circumstantial evidence demonstrating Marberger’s
impairment from a controlled substance that impacted his ability to safely
drive.
At the suppression hearing, Trooper Ogando testified that he performed
a traffic stop on Marberger because he was driving without his headlights on.
See N.T. Suppression Hearing, 6/21/23, at 10. Upon pulling him over, Trooper
Ogando observed Marberger was jittery and had bloodshot eyes. See id. at
12. Marberger was “over-moving or wouldn’t sit still, or . . . right away answer
. . . the questions that [the Trooper] was asking him.” Id. Marberger’s eyes
“were dilated and had a slow reaction to the light.” Id. The Trooper knew this
dilation to mean that “someone is under the influence of drugs.” Id. at 13.
The Trooper ascertained from Marberger that, although Marberger stated that
he was headed towards Chester County, he was, at that moment, traveling in
the complete opposite direction. See id. at 14.
Trooper Ogando then recalled Marberger’s performance on the field
sobriety tests. With the HGN test, Trooper Ogando observed a “lack of smooth
pursuit of both eyes” from Marberger, a sign of impairment. Id. at 19. For the
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walk-and-turn test, Marberger, as further signs of impairment, “missed heel
to toe; stepped off line; spun to the right; and used his arms for balance.” Id.
at 20. Regarding the one-leg stand, Trooper Ogando detected yet more signs
of impairment when Marberger “placed his foot down[,] used his arm for
balance, and was swaying while performing the test.” Id. at 21. From the
results of these tests, Trooper Ogando determined that Marberger was under
the influence of drugs, which impacted his ability to safely drive his vehicle.
See id. at 22-23. After his arrest and having been read the DL-26B form,
Marberger did not consent to a blood draw, instead asking whether he had the
right to remain silent. See id. at 23-24.
Trooper Kirk, in his testimony, stated that, upon being pulled over,
Marberger began “oversharing information[.]” Id. at 46. Marberger “was very
fidgety. He couldn’t sit still[ and was] moving back and forth.” Id. He would
“ramble on when Trooper Ogando would ask him very straightforward
questions.” Id. This fidgetiness “can commonly be an indicator of controlled
substance usage.” Id. Trooper Kirk conducted the ARIDE evaluation, which
took place after the three field sobriety tests performed by Trooper Ogando.
See id. at 50-51. During “[t]he lack[-]of[-]convergence” test, which involved
placing a pen in front of Marberger’s face and asking him to follow it,
Marberger’s left eye did “not converge[,]” which was an indicator of
impairment from a controlled substance. Id. at 51, 53. Trooper Kirk also
noticed Marberger’s eyes as “glassy and bloodshot[,]” with dilated pupils. See
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id. at 52. The second test Trooper Kirk performed, the modified Romberg
balance test, resulted in Marberger swaying and experiencing eyelid tremors,
which were also signs of impairment. See id. at 53-54.
Further conversation between Trooper Kirk and Marberger led Trooper
Kirk to note that Marberger’s story about his own whereabouts that evening
“was kind of all over the place from what he had previously related to Trooper
Ogando.” Id. at 54. Marberger would talk very fast, repeat himself, and
continue to ramble on. See id. at 55. Trooper Kirk concluded that Marberger
“was under the influence of a controlled substance to a degree which rendered
him incapable of safe driving.” Id. After his arrest, Marberger stated,
unprompted, that he was not on “any methamphetamines or hard drugs like
that.” Id. at 56.
The totality of the circumstances compels a conclusion, predicated on
reasonable inferences drawn therefrom, that Marberger was impaired by a
controlled substance or substances that created the condition in which he was
incapable of safe driving. Cf. Commonwealth v. Gause, 164 A.3d 532, 539-
42 (Pa. Super. 2017) (en banc) (“staggering, stumbling, glassy or bloodshot
eyes, and slurred speech” are indicators of intoxication; “[e]vidence that the
driver was not in control of himself, such as failing to pass a field sobriety test,
may establish that the driver was under the influence . . . to a degree which
rendered him incapable of safe driving”) (citation omitted). Therefore, under
these facts, there was no compelling need for the Commonwealth to adduce
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the specific controlled substance that influenced Marberger and caused him to
be incapable of safe driving. See Seibert, supra. Indeed, the troopers
provided sufficient evidence, through voluminous testimony—especially
relating to Marberger’s driving behavior prior to being pulled over, including
driving without headlights at night and weaving into the oncoming traffic lane,
the troopers’ personal observations of Marberger’s behavior during their
interactions, and Marberger’s refusal to participate in a blood test—that
established that Marberger was under the influence of a controlled substance
that caused him to be incapable of safely driving.
As to Marberger’s performance on the various sobriety tests, in which
both troopers extensively testified as to the failure points they had observed,
we first acknowledge that such 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
and where the witness can opine as to whether the defendant was
drunk.
Commonwealth v. Ragan, 652 A.2d 925, 928 (Pa. Super. 1995). Such “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). “The field sobriety tests are not meant to ascertain with
certainty a driver’s BAC, but only to provide the officer with information useful
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to determine whether the driver is impaired. The determination whether to
arrest for DUI must be made by the officer in light of the circumstances
surrounding the traffic stop.” Id. (citation omitted). As highlighted in their
testimonies, both troopers thoroughly delved into the tests that they had
Marberger perform, which, from his various failures on those tests, provided
additional indicia of Marberger’s impairment.
Accordingly, the evidence presented at trial, along with all reasonable
inferences therefrom, viewed in the light most favorable to the Commonwealth
as the verdict winner, was sufficient to support Marberger’s conviction for DUI.
See Kim, 888 A.2d at 851-52.
In his third claim, Marberger avers, first, that the troopers did not have
requisite reasonable suspicion and/or probable cause to subject him to field
sobriety tests,7 which is a challenge to the suppression court’s original
determination that it was legally permissible for the troopers to request
completion of those tests.8 Review of a court’s decision to deny suppression
is well-settled:
Our standard of review of a denial of suppression is whether the
record supports the trial court’s factual findings and whether the
legal conclusions drawn therefrom are free from error. Our scope
____________________________________________
7 Marberger fails to distinguish between reasonable suspicion or probable
cause and their applicability to any component of the interaction between
himself and the troopers.
8 Yet again, Marberger has not provided any standard of review for appellate
analysis of his claim.
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of review is limited; we may consider only the evidence of the
prosecution 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 record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the court erred in reaching its legal conclusions based upon
the facts.
Commonwealth v. Schwing, 964 A.2d 8, 11 (Pa. Super. 2008).
Marberger concedes that he was driving in the middle of the night
without his headlights on9 and that, to the troopers, he appeared jittery, had
bloodshot, glassy eyes, and a slow pupillary response. See Appellant’s Brief,
at 12. Nevertheless, Marberger argues that, pursuant to this Court’s
unpublished decision in Commonwealth v. Clark, 2024 WL 3718164 (Pa.
Super., filed Aug. 8, 2024) (unpublished memorandum) (1044 MDA 2023),
“there was not sufficient evidence to have [him] exit the vehicle and perform
field sobriety tests.” Appellant’s Brief, at 12. Marberger does not elaborate
beyond providing a block quotation to this unpublished case; therefore, we
find that Marberger has waived review of this component of his issue. 10
____________________________________________
9 See 75 Pa.C.S. § 4302(a)(1) (requiring the use of headlights between sunset
and sunrise). “Pennsylvania law makes clear that 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. Harris,
176 A.3d 1009,
1019 (Pa. Super. 2017)
10 “When issues are not properly raised and developed in briefs, when the
briefs are wholly inadequate to present specific issues for review, a court will
not consider the merits thereof.” Commonwealth v. Sanford,
445 A.2d 149,
150 (Pa. Super. 1982) (citations omitted). Nevertheless, Marberger’s citation
to Clark is inapposite because therein, this Court found there to be reasonable
(Footnote Continued Next Page)
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As to the second part of his third claim, Marberger suggests that “there
was not sufficient cause to arrest [him] and transport him for chemical
testing.” Id. (capitalization altered). Marberger cites to the implied consent
statute located at 75 Pa.C.S. § 1547(a)11 and a decision from our sister court,
the Commonwealth Court,12 to conclude that Marberger’s observed driving
and subsequent actions, in the absence of any paraphernalia, odors, residue,
or admissions, were not enough for the troopers to conclude that he had been
using a controlled substance. See id. at 14. Although, given his terseness, the
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suspicion of DUI, allowing for the administration of field sobriety tests,
predicated on, inter alia, that appellant’s “red, glassy, bloodshot, and watery”
eyes and confused state.
2024 WL 3718164 at *3. Here, as previously stated,
Marberger admits that he “appeared jittery and had bloodshot, glassy eyes[,]
and [a] slow pupillary response[,]” Appellant’s Brief, at 12, which, under
Clark, is sufficient to constitute reasonable suspicion for the officers to
thereafter proceed to field sobriety testing.
11 We note that, during the pendency of this appeal, our Supreme Court
decided Commonwealth v. Hunte. --- A.3d ---,
2025 WL 1703981 (Pa.
2025) (16 MAP 2023). Therein, the Court determined that “Section 3755[, the
“emergency room counterpart” to Section 1547,] is facially unconstitutional
under the Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution.” Id. at *25. Nevertheless, there is
nothing in Hunte that suggests the invalidity of Section 1547. In any event,
although Marberger refused chemical testing, he was convicted under Section
3802(d)(2), which, as distinct from Section 3802(d)(1), does not require any
blood-based evidence of a controlled substance. Thus, any invocation by
Marberger of Section 1547 in support of his underlying argument is immaterial
because, as previously established, ample non-blood-based evidence existed
of his impairment.
12While possibly persuasive, we emphasize that we “are not bound by the
decisions of a sister court.” Conrad v. Bundy,
777 A.2d 108, 112 (Pa. Super.
2001).
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precise thrust of his argument is unclear,13 the totality of the circumstances
clearly demonstrates that: (1) the troopers, observing Marberger driving
without headlights in addition to weaving into the oncoming lane of traffic,
both violations of the Pennsylvania Motor Vehicle Code, effectuated a legal
traffic stop, see Harris, 176 A.3d at 1019; (2) upon approaching and
conversing with him, Marberger’s reported condition, including, inter alia, his
bloodshot and glassy eyes, jittery body language, inability to sit still, talkative
and oversharing manner, and contradictory explanation as to his
whereabouts, provided reasonable suspicion, under a totality of the
circumstances, for the troopers to engage in a more detailed post-stop
investigation, see, e.g., Commonwealth v. Rogers,
849 A.2d 1185, 1189
(Pa. 2004) (allowing an officer to detain an individual to conduct an
investigation “if that officer reasonably suspects that the individual is engaging
in criminal conduct[]”); and (3) Marberger’s performance on the field sobriety
tests, when coupled with other observations evidencing impairment, provided
probable cause for the troopers to determine that he was under the influence
of a controlled substance rendering him incapable of safe driving, see, e.g.,
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13 In this subsection of his third claim, paralleling the structure of the previous
subsection in which we found waiver, Marberger’s brief contains what is
essentially one block quotation and three explanative, conclusory sentences.
See Appellant’s Brief, at 12-14. We interpret and analyze his underlying
contention as best as possible under the circumstances, but express our
displeasure in his lack of clarity.
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Salter, 121 A.3d at 997 (failing field sobriety tests is not necessary for
probable cause determination, but performing poorly may be sufficient for
impairment finding) (citation omitted). Accordingly, the troopers, based on
the facts and circumstances within their personal knowledge throughout their
encounter, first had reasonable suspicion to extend the lawful traffic stop to
investigate whether Marberger was engaged in DUI, and, thereafter, after
compiling more information as to Marberger’s level of impairment, they had
probable cause to arrest Marberger on suspicion of DUI. See, e.g.,
Commonwealth v. Hilliar,
943 A.2d 984, 994 (Pa. Super. 2008) (“Probable
cause exists where the officer has knowledge of sufficient facts and
circumstances to warrant a prudent person to believe that the driver has been
driving under the influence of . . . a controlled substance.”) (citation omitted).
As such, the suppression court’s denial of relief was supported by the record
and free of legal error, and Marberger is due no relief on this claim.
As none of his issues warrant relief, we affirm Marberger’s judgment of
sentence.
Judgment of sentence affirmed.
Date: 8/25/2025
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