Commonwealth v. Haines

J-A05033-17

2017 PA Super 205

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DOUGLAS NELSON HAINES

Appellant No. 1316 WDA 2016

Appeal from the Judgment of Sentence August 26, 2016
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001731-2015

BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.

OPINION BY MOULTON, J.: FILED JUNE 30, 2017

Douglas Nelson Haines appeals from the August 26, 2016 judgment of

sentence entered in the Mercer County Court of Common Pleas following his

bench trial conviction for driving under the influence (“DUI”) – highest rate

of alcohol.1 We affirm.

The trial court, in disposing of Haines’ motion to suppress, set forth

the following factual history:

2. On October 3, 2015, [Pennsylvania State Police]
Trooper [James] Mason was working the midnight shift. A
second trooper, Yurna,[2] was in the vehicle with him.

3. Sometime around 4:00 a.m., Trooper Mason
received a dispatch of a possible accident on North Cottage
Road in Jackson Township, Mercer County, Pennsylvania.
____________________________________________

1
75 Pa.C.S. § 3802(c).
2
Trooper Yurna’s first name does not appear in the record.
J-A05033-17

The caller did not see the accident, nor could the caller
identify anyone in the accident. The caller simply reported
that he heard what sounded like an accident.

4. Within three to four minutes Trooper Mason
arrived at the scene. At some point a second marked
cruiser also arrived at the scene.

5. Upon arrival, the troopers discovered a 2012
black Jeep Grand Cherokee that had gone off the road and
had skidded into a small wooded area causing moderate
damage to the vehicle. Various windows in the vehicle
were broken but still intact such that a person could not
have been thrown through the window, and several
airbags had deployed.

6. The troopers approached the vehicle to determine
if someone was hurt or worse. They found no one in the
Jeep or in the immediate area.

7. When the troopers investigated the Jeep itself,
they saw no signs of blood and could make no
determination as to whether or not someone was injured in
that accident.

8. Trooper Mason ran the Jeep’s registration plate,
and it came back to . . . Douglas Nelson Haines, of . . .
Grove City, Pennsylvania. Trooper Mason also obtained
Haines’ driver’s license information, which included his
physical description and a driver’s license photograph.

9. The area of the accident was a dark, rural area
with no street lights. Rain was moderate to heavy. The
blacktop road was wet. There was very little traffic on this
secondary road at the time of Trooper Mason’s
investigation, although it is possible that the local paper
deliveryman had passed.

10. At the scene, Trooper Mason called for a tow
truck. The troopers in the second car drove around the
surrounding area looking for pedestrians, but no one was
located.

11. Trooper Mason waited in his car for a tow truck,
sitting in the south bound lane facing north toward the
accident, with headlights and emergency light[s] on.

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12. Approximately ten minutes after Trooper Mason
arrived at the scene while he was parked in the driveway
awaiting the tow truck, he saw in his rearview mirror a
vehicle approach. This vehicle was travelling north in the
northbound lane. Trooper Mason observed the vehicle
stop about a half a mile behind (to the south) of where the
Trooper’s vehicle was located. The vehicle stopped on the
roadway and remained stopped for approximately 10 to 15
seconds.

13. This vehicle then continued driving in a northerly
direction and ultimately passed Trooper Mason. Because it
was dark and raining, the Trooper could not determine
who or how many people were in the vehicle. The car was
travelling at an appropriate speed and as it travelled it was
not violating the Pennsylvania Motor Vehicle Code.

14. As this vehicle passed Trooper Mason’s position,
he observed the car’s registration plate and ran the same.
The registration came back to a Samuel Haines, showing
the owner’s address as . . . Latonka Drive in Mercer,
Pennsylvania. The last name “Haines” was spelled the
same way as the last name on the owner of the crashed
vehicle. It was Trooper Mason’s impression that the
second vehicle had pulled up possibly to pick up the
operator of the first vehicle.

15. Once Trooper Mason discovered the name of the
registered owner of the vehicle, he effectuated a stop of
that vehicle, which took place approximately one half mile
north of the accident scene. The vehicle stopped
appropriately.

16. Trooper Mason observed a female driving the
vehicle and an individual in the front passenger seat who
he identified as Haines based upon the driver’s license
picture obtained from running the crashed vehicle’s plates.

17. North Cottage Road provides access to the Lake
Latonka area.

18. Trooper Mason believed he had reasonable
suspicion to stop the second car given its proximity to the
accident scene, the fact that the car had stopped on the
roadway for 10 to 15 seconds, and because the registered

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owner’s last name was the same last name as that of
[Haines].

19. The distance between Grove City and Mercer is
approximately nine miles. The distance between Mercer
and the Pennsylvania State Police barracks is an additional
five miles. Grove City and Mercer are two distinct
municipalities.

20. There was no testimony as to the identity of the
female driver of the car in which [Haines] was a
passenger, that the female driver was authorized to drive
this car, or that [Haines] had a possessory interest in the
car.

21. Trooper Mason detected an odor of alcohol
emanating from the vehicle and asked Haines to exit.
Haines lost his balance on the roadway and smelled of
alcohol, so Trooper Mason effectuated a field sobriety test
which Haines failed.

22. Trooper Mason arrested Haines for D.U.I. and
read him Implied Consent, O’Connell[3] Warnings, and
Mirandized him. Mr. Haines ultimately did admit to being
the operator of the vehicle. He said he swerved to miss a
deer, and that’s how he lost control.

23. At 5:15 a.m., Haines was transported to Grove
City Hospital where lab technician Lana Lewis withdrew
Haines’ blood sample. The sample was sent to the Erie
Regional Laboratory, which determined that Haines had a
blood alcohol content [(“BAC”)] of .244%.

...

On October 23, 2015, Haines was charged with D.U.I.
General impairment (75 Pa.C.S. § 3802(a)(1)) and D.U.I.
Highest rate of alcohol (75 Pa.C.S. § 3802(c)). On March
23rd, 2016, Haines filed an omnibus pretrial motion which
challenged the constitutionality of the stop and search

____________________________________________

3
Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).

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J-A05033-17

conducted by Trooper Mason, and requested the
suppression of all evidence obtained after the traffic stop.

Trial Ct. Suppression Adj., 6/9/16, at 1-5. On May 4, 2016, the trial court

held a hearing on the motion to suppress. On June 9, 2016, the trial court

denied the motion to suppress. On June 24, 2016, after a bench trial,

Haines was convicted of DUI – highest rate of alcohol; he was acquitted of

DUI – general impairment.

On August 3, 2016, Haines filed a motion in arrest of judgment based

on the United States Supreme Court’s decision in Birchfield v. North

Dakota, 136 S.Ct. 2160 (2016). Haines claimed that because the

Birchfield Court “held that a warrant [is] required to obtain a blood sample

in a [DUI] prosecution,” and “[Haines’] blood sample [was] obtained . . .

without a warrant[,] . . . no charges remain viable against [Haines], and

judgment should be arrested.”4 Mot. in Arrest of Judg., 8/3/16, ¶ 4-5, 7.

On August 4, 2016, the trial court denied Haines’ motion.

On August 26, 2016, the trial court sentenced Haines to incarceration

of 90 days to 18 months, followed by six months’ probation. In its order,

the trial court permitted Haines, after serving time in the Mercer County Jail,

to serve the remaining 80 days of his minimum sentence on electronic house

arrest and made Haines eligible for work release during his incarceration or
____________________________________________

4
Haines also asserted that “[t]he policy of the District Attorney of
Mercer County in the wake of the Birchfield case is to withdraw any DUI
charges except under [75 Pa.C.S.] § [3802](a), [g]eneral [i]mpairment, in
which [Haines] . . . was acquitted.” Mot. in Arrest of Judg., 8/3/16, ¶ 6.

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J-A05033-17

house arrest. Further, the trial court granted Haines automatic parole at the

conclusion of his minimum sentence if “he has obeyed the rules and

regulations of the Mercer County Jail and the house arrest program[.]”5

Sent. Order, 8/26/16, at 2. On September 1, 2016, Haines timely filed his

notice of appeal.6

Haines raises two issues on appeal:

1. Was the traffic stop and seizure of the Samuel
Haines vehicle based upon “coincidence”
constitutionally justified?

2. Did the Sentencing Court err in refusing to Arrest
Judgment of the BAC count, based upon the
Birchfield case?

Haines’ Br. at 6 (suggested answers omitted).

I. Validity of Stop

First, Haines argues that the stop of the second vehicle, registered to

Samuel Haines, was unconstitutional. In reviewing the denial of a

suppression motion, we must determine

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
____________________________________________

5
On August 31, 2016, the trial court amended its sentencing order to
correct a clerical error, modifying the grade of Haines’ conviction from “UM”
to “M-1.” Am. Sent. Order, 8/31/16.
6
Haines is on bond pending appeal. See Order, 8/26/16.

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uncontradicted when read in the context of the record as a
whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings
and may reverse only if the court’s legal conclusions are
erroneous. Where, as here, 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 our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

quotations and citations omitted). In reviewing the denial of a suppression

motion, we may only consider evidence presented at the suppression

hearing. In re L.J., 79 A.3d 1073, 1085-87 (Pa. 2013).

A. Level of Justification Required

In assessing Haines’ motion to suppress, we first must determine what

level of legal justification was necessary to support the stop in question.

Haines, citing Commonwealth v. Ibrahim, 127 A.3d 819, 823 (Pa.Super.

2015), app. denied, 138 A.3d 3 (Pa. 2016), argues that Trooper Mason

needed probable cause to justify the stop. We disagree.

In Pennsylvania, some traffic stops require only reasonable suspicion

while others require probable cause. Section 6308(b) of the Vehicle Code

sets forth the general rule:

Whenever a police officer is engaged in a systematic
program of checking vehicles or drivers or has reasonable
suspicion that a violation of this title is occurring or has
occurred, he may stop a vehicle, upon request or signal,
for the purpose of checking the vehicle's registration, proof
of financial responsibility, vehicle identification number or
engine number or the driver's license, or to secure such

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other information as the officer may reasonably
believe to be necessary to enforce the provisions of
this title.

75 Pa.C.S. § 6308(b) (emphasis added). As we explained in Ibrahim,

however, section 6308(b) “does not apply in all instances because . . . not

all vehicle offenses require further investigation to determine whether a

motorist has committed that offense.” Ibrahim, 127 A.3d at 823. Rather,

“some offenses, by their very nature, require a police officer to possess

probable cause before he or she may conduct a traffic stop.” Id. The

required level of justification hinges on whether the stop “serve[s] a stated

investigatory purpose.” Commonwealth v. Feczko, 10 A.3d 1285, 1291

(Pa.Super. 2010). If so, then section 6308(b) controls and reasonable

suspicion is sufficient. As we said in Feczko, “the language of section

6308(b) . . . is conceptually equivalent with the underlying purpose of a

Terry[7] stop.” Id.

If, however, “the driver’s detention cannot serve an investigatory

purpose relevant to the suspected violation[,] . . . [m]ere reasonable

suspicion will not justify a vehicle stop[.]” Id. As our Supreme Court

explained,

a vehicle stop based solely on offenses not “investigatable”
cannot be justified by a mere reasonable suspicion,
because the purposes of a Terry stop do not exist—
maintaining the status quo while investigating is
inapplicable where there is nothing further to investigate.
____________________________________________

7
Terry v. Ohio, 392 U.S. 1 (1968).

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J-A05033-17

An officer must have probable cause to make a
constitutional vehicle stop for such offenses.

Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008).

We recently shed light on this distinction in Commonwealth v.

Salter:

[W]hen considering whether reasonable suspicion or
probable cause is required constitutionally to make a
vehicle stop, the nature of the violation has to be
considered. If it is not necessary to stop the vehicle to
establish that a violation of the Vehicle Code has occurred,
an officer must possess probable cause to stop the vehicle.
Where a violation is suspected, but a stop is necessary to
further investigate whether a violation has occurred, an
officer need only possess reasonable suspicion to make the
stop. Illustrative of these two standards are stops for
speeding and DUI. If a vehicle is stopped for speeding,
the officer must possess probable cause to stop the
vehicle. This is so because when a vehicle is stopped,
nothing more can be determined as to the speed of the
vehicle when it was observed while traveling upon a
highway. On the other hand, if an officer possesses
sufficient knowledge based upon behavior suggestive of
DUI, the officer may stop the vehicle upon reasonable
suspicion of a Vehicle Code violation, since a stop would
provide the officer the needed opportunity to investigate
further if the driver was operating under the influence of
alcohol or a controlled substance.

121 A.3d 987, 993 (Pa.Super. 2015).

The situation before us does not fit neatly into the speeding/DUI

dichotomy set out in Salter. The paradigm cases described by Salter and

other authority, see, e.g., Commonwealth v. Sands 887 A.2d 261, 270

(Pa.Super 2005) (comparing DUI to speeding and running a red light);

Ibrahim, 127 A.3d at 824 (comparing speeding to travelling the wrong way

on one-way street), all involve stopping the vehicle that is suspected of

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being involved in the violation. Whether the offense is speeding, failing to

stay in a single lane, see, e.g., Feczko, or driving the wrong way on a one-

way street, see, e.g., Ibrahim, no evidence relevant to the offense is likely

to be found in the offending vehicle. Accordingly, we have concluded that

the rationale of Terry – permitting further investigation based on reasonable

suspicion – cannot be used to justify the stop.8 Here, in contrast, we

confront not only an offense that may require further investigation but also a

stop that sought that information from a place other than the offending

vehicle.

Section 3746(a)(2) of the Vehicle Code provides:

The driver of a vehicle involved in an accident shall
immediately by the quickest means of communication give
notice to the nearest office of a duly authorized police
department if the accident involves:

...

(2) damage to any vehicle involved to the extent that
it cannot be driven under its own power in its
____________________________________________

8
In most instances, the probable cause requirement is easily met
based on a police officer’s observation of the violation. See, e.g., Ibrahim,
127 A.3d at 824 (finding probable cause where officer observed appellant
“drive his bicycle westbound on a road that requires all traffic to proceed in
the eastbound direction”); Feczko, 10 A.2d at 1292 (finding probable cause
where trooper’s dashboard camera video showed appellant’s vehicle touch
white fog line and cross yellow center line); but cf. Commonwealth v.
Whitmyer,, 668 A.2d 1113, 1117-18 (Pa. 1995) (finding no probable cause
for speeding where officer paced vehicle for two-tenths of a mile when
statute required speed pacing for at least three-tenths of a mile),
superseded on other grounds as recognized by Chase, 960 A.2d at 112.

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customary manner without further damage or hazard to
the vehicle, other traffic elements, or the roadway, and
therefore requires towing.

75 Pa.C.S. § 3746(a)(2). Unlike the paradigmatic probable cause cases, this

provision will often require investigation beyond mere observation of

offending conduct. As this case illustrates, investigating officers may need

to determine both whether the vehicle requires towing9 and, if so, whether

its driver had notified or was in the process of notifying the police “by the

quickest means of communication,” as required by law. Cf., e.g., Feczko,

10 A.3d at 1292 (holding that suspected violation of 75 Pa.C.S. § 3309(1),

driving in single lane, where officer observed defendant’s vehicle touch white

fog line and cross center yellow diving line, required probable cause);

Salter, 121 A.3d at 993-94 (holding that violation of 75 Pa.C.S. § 4303,

lighting requirements, required probable cause for stop, as “[n]othing more

needed to be determined by [the o]fficer . . . upon a stop to verify that the

plate light was not operating”).

While under some circumstances a violation of section 3746(a)(2)

could be immediately apparent and require no further investigation, such will

often not be the case. That the stop here was of a different vehicle does not

change our analysis. If Trooper Mason had reasonable suspicion that the

Samuel Haines vehicle contained evidence relevant to the possible violation

____________________________________________

9
Trooper Mason testified that he was “not sure whether [the vehicle]
would have been drivable or not.” N.T., 4/8/16, at 4.

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J-A05033-17

at issue, he was authorized to make the stop.10 Cf. Commonwealth v.

Thompson, 93 A.3d 478, 482-83, 485 (Pa.Super. 2014) (concluding that

police had reasonable suspicion to stop vehicle after observing passenger

engage in possible narcotics transaction).

B. Application of Reasonable Suspicion Standard

Next, Haines argues that, even under the reasonable suspicion

standard, Trooper Mason lacked adequate justification to stop the second

vehicle. We disagree.

Haines relies on Commonwealth v. Andersen, 753 A.2d 1289, 1294

(Pa.Super. 2000), which held that an officer lacks reasonable suspicion to

stop a motor vehicle when he knows only that the owner of the vehicle has

a suspended license but does not know who is operating the vehicle.

Haines also asserts that Trooper Mason had no evidence that Haines was

related to Samuel Haines, the registered owner of the second vehicle, and

highlights the trial court’s reference to the identity of surnames a

“coincidence.”

____________________________________________

10
In the section of his brief arguing for a probable cause standard,
Haines asserts, without elaboration, that “this offense is not a crime but
rather a summary offense.” Haines Br. at 12. That section 3746 is a
summary offense does not affect the level of suspicion required to stop a
motor vehicle; rather, it is the nature of the possible violation that
determines the required level of suspicion. See Feczko, 10 A.3d at 1291;
Salter, 121 A.3d at 993.

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An officer may stop and briefly detain a person for investigatory

purposes when that officer has “reasonable suspicion, based on specific and

articulable facts, that criminal activity may be afoot.” Commonwealth v.

Allen, 725 A.2d 737, 740 (Pa. 1999). “[T]he fundamental inquiry is an

objective one, namely, whether the facts available to the officer at the

moment of the intrusion warrant a man of reasonable caution in the belief

that the action taken was appropriate.” Commonwealth v. Gray, 784 A.2d

137, 142 (Pa.Super. 2001). We must consider the totality of the

circumstances, including such factors as “tips, the reliability of the

informants, time, location, and suspicious activity.” Id. (citing

Commonwealth v. Freeman, 757 A.2d 903, 908 (Pa. 2000)). “[T]he

totality of the circumstances test does not limit our inquiry to an

examination of only those facts that clearly indicate criminal conduct.

Rather, ‘even a combination of innocent facts, when taken together, may

warrant further investigation by the police officer.’” Commonwealth v.

Rogers, 849 A.2d 1185, 1189 (Pa. 2004) (quoting Commonwealth v.

Cook, 735 A.2d 673, 676 (Pa. 1999)).

We conclude that Trooper Mason had reasonable suspicion to stop the

second car. Shortly before the stop, and three to four minutes after the

radio report of an accident, Trooper Mason had arrived on the scene to find a

vehicle, registered to Haines, crashed in the woods with its airbags

deployed. No driver was in sight. The vehicle’s windows, while cracked,

were intact, so Trooper Mason concluded that no one had been ejected from

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the vehicle; accordingly, he instructed other officers to begin canvassing the

area. While waiting for a tow truck to arrive, Trooper Mason saw a vehicle

approach the accident scene, stop for 10 to 15 seconds in the roadway, and

continue up the road. At the time, shortly after 4 a.m., there was no other

traffic on the road. When the car passed by Trooper Mason, he could not

see inside but ran its license plate and discovered that it was owned by

Samuel Haines of Latonka Drive in Mercer. The vehicle was headed in the

direction of Lake Latonka. Based on that information, Trooper Mason

reasonably suspected that the vehicle might have stopped to pick up the

operator of the wrecked vehicle.

When Trooper Mason effectuated the stop, he was investigating a

violation of section 3746(a)(2). Under the circumstances, it was reasonable

for him to stop the car and briefly detain its occupants in order to determine

whether the operator of the crashed vehicle, who had thus far failed to

report the accident to police,11 was now in the second vehicle. That the

____________________________________________

11
We have found no appellate case addressing the “immediacy”
requirement of section 3746(a)(2). Some common pleas court decisions
have construed the term “immediate” to require only substantial compliance.
See, e.g., Commonwealth v. Levan, 11 Pa.D.&C.3d 186 (Montour Cnty.
1979); Commonwealth v. Wetmore, 69 Pa.D.&C.2d 344 (Pike Cnty.
1974). However, “on single-car violations there exists the great potential of
a person who may be intoxicated driving on home, sobering up and then,
when he is in better condition to be noble, report his accident.” Wetmore,
69 Pa.D.&C.2d at 346. Further, since these decisions were issued, cell
phones and other technologies now allow drivers to report accidents within
minutes of their occurrence.

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second vehicle (1) stopped on the roadway near the accident, shortly after it

occurred (roughly 4 a.m.) and (2) was registered to a person also named

Haines who resided not far from the driver of the crashed car, was sufficient

to justify the stop. See Commonwealth v. Zhahir, 751 A.2d 1153, 1157

(Pa. 2000) (noting that reasonable suspicion requires lesser showing than

probable cause “in terms of both quantity or content and reliability”) (citing

Alabama v. White, 496 U.S. 325, 330-31 (1990)).

Haines’ reliance on Andersen is misplaced. Andersen held that

police lacked reasonable suspicion to stop a vehicle based on the “mere

assumption” that the registered owner of the vehicle, whose driving

privileges had been suspended, was driving the car at the time. 753 A.2d at

1294. We expressed our concern in Andersen as follows:

Holding otherwise would subject drivers who lawfully
operate vehicles owned or previously operated by a person
with a suspended license to unnecessary traffic stops. The
example of the family car demonstrates this point.
Although a family car may be registered in the name of
one individual, numerous additional drivers may be
licensed and insured to operate the same vehicle. If we
allow the police to stop any vehicle for the mere fact that it
is owned or once operated by an individual whose
operating privileges are suspended, then each additionally
insured driver of the family car could be subject to traffic
stops while lawfully operating the family car simply
because the license of another operator of the vehicle is
suspended.

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Id. In other words, Andersen rejected the notion that a particular vehicle

is subject to a stop any time any past driver of that vehicle has a suspended

license.12

The situation before us is quite different. Trooper Mason had a

number of articulable facts to support his reasonable suspicion of a section

3746(a)(2) violation: the car was damaged to the point that police called in

a tow truck; police arrived on the scene shortly after the accident to find the

driver missing; a car approached the accident scene and stopped for 10 to

15 seconds; the second car was registered to a person with the same last

name as Haines, who lived nearby. Based on these facts, Trooper Mason

drew the reasonable inference that the operator of the wrecked vehicle, who

failed to immediately report the accident to police, may have been in the

second vehicle pulling away from the scene.13
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12
While we distinguish Andersen on its facts, we also note that
Andersen relied on the “articulable and reasonable grounds” standard,
which the General Assembly later struck by amending section 6308(b) to
“the less stringent standard of ‘reasonable suspicion.’” See
Commonwealth v. Hilliar, 943 A.2d 984, 990 n.1 (Pa.Super. 2008).
13
We also reject Haines’ argument that the Commonwealth had to
provide information on the commonality of Haines’ last name in Mercer
County. According to Haines, the record does not support the
Commonwealth’s contention that “it was obviously a relative or friend of . . .
Haines driving the [second] vehicle since they were registered to people with
the same surname.” Haines’ Br. at 14. This argument, however, ignores
the totality-of-the-circumstances test employed by this Court. This
information, viewed together with the rest of the circumstances surrounding
Haines’ accident, provided Trooper Mason with reasonable suspicion to stop
the second vehicle.

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II. Validity of Consent to Blood Draw under Birchfield

Next, Haines argues that the trial court erred in denying his post-

verdict motion for arrest of judgment based on Birchfield.14 The trial court,

treating that motion as one for extraordinary relief, denied it before

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14
While we ultimately conclude that Haines’ arguments are best
addressed through PCRA proceedings, we also note that the trial court could
not have addressed Haines’ claims through a motion in arrest of judgment.
While Haines correctly filed his motion after the verdict, a motion in arrest of
judgment is limited to “causes appearing on the face of the record or
insufficiency of the evidence.” Commonwealth v. Fitten, 657 A.2d 972,
973 (Pa.Super. 1995). “Causes appearing on the face of the record include
such fundamental defects as lack of jurisdiction, former jeopardy or failure of
an indictment or information to charge an offense.” Commonwealth v.
Stark, 584 A.2d 289, 291 (Pa.Super. 1990). In reviewing a motion in arrest
of judgment, the trial court must consider all evidence actually received,
whether the trial rulings thereon were right or wrong. Commonwealth v.
Jackson, 302 A.2d 420, 422 (Pa.Super. 1973) (internal quotation marks
omitted). Further, a trial court may not separately justify an arrest of
judgment in “the interest of justice” where the error does not appear on the
face of the record. Id. at 422-23. Here, Haines did not challenge the
sufficiency of the evidence, nor did he assert an error on the face of the
record. Rather, Haines raised a suppression issue well after his filing of an
omnibus pretrial motion. Under these circumstances, the trial court could
not grant Haines an arrest of judgment because his Birchfield issue was not
a matter of record and the motion asked the trial court to exclude Haines’
BAC results and then reassess the evidence.

We also note that the trial court treated Haines’ written motion in
arrest of judgment as a motion for extraordinary relief under Pennsylvania
Rule of Criminal Procedure 704(B). However, Rule 704(B) motions must be
made orally. See Pa.R.Crim.P. 704(B)(1). Further, “[a] motion for
extraordinary relief [has] no effect on the preservation or waiver of issues
for post-sentence consideration or appeal.” See id. (B)(3). Thus, even if
Haines had used the correct procedure and orally moved for extraordinary
relief, this Court would not be able to review the issues he raised in that
motion.

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sentencing on the ground that Haines had failed to raise it in his omnibus

pretrial motion. The court reasoned that while Birchfield was not decided

until the day before the verdict in this case, counsel should have known that

Birchfield was pending in the Supreme Court and raised the issue before

trial. N.T., 8/26/16, at 6-7 (suggesting that Haines’ counsel was ineffective

for failing to raise Birchfield issue before trial). Haines asserts that it was

not ineffective to fail to anticipate the Supreme Court’s ruling in Birchfield,

and that a subsequent Post Conviction Relief Act (“PCRA”) petition therefore

would likely be unsuccessful.15 Haines Br. at 16-17. For that reason, and

because he may have already served his sentence before PCRA relief would

be available, Haines asks that we invalidate his conviction now. Id. at 17

____________________________________________

15
We make no judgment here about whether counsel was ineffective
for failing to raise an issue then pending before the Supreme Court. We
note, however, that while “counsel cannot be held ineffective for failing to
anticipate a change in the law[,]” Commonwealth v. Cox, 983 A.2d 666,
702 (Pa. 2009), the issue of blood draws in DUI cases was before the United
States Supreme Court at the time Haines filed his omnibus pre-trial motion.
See Birchfield v. North Dakota, 136 S.Ct. 614 (2015) (granting certiorari
on December 11, 2015). Thus, Haines’ case does not fit into the
prototypical situation where counsel is charged with ineffectiveness because
he failed to consult the “crystal ball.” See, e.g., Commonwealth v.
Williams, 528 A.2d 980, 982-83 (finding counsel not ineffective for failing
to anticipate United States Supreme Court’s decision in Batson v.
Kentucky, 476 U.S. 79 (1986) and mount challenge to jury composition);
but cf. Commonwealth v. Humphrey, 375 A.2d 717, 719-20 (Pa. 1977)
(concluding that counsel was ineffective for failing to object to witnesses’
comments on defendant’s silence despite lack of binding authority where (1)
issue was scheduled to be reargued before the Pennsylvania Supreme Court,
(2) several federal courts had decided the issue favorably to defendant, and
(3) counsel showed unawareness of current state of Pennsylvania law).

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(this Court “should utilize the Rules of Criminal Procedure . . . to arrive at

the correct result without unnecessary delay”).

Preliminarily, we note that Haines argues that because Birchfield

requires a warrant for a blood draw, and no warrant was obtained in this

case, the results of that blood draw must be suppressed. Haines’ Br. at 15.

This contention, however, ignores a crucial component of Birchfield, which

is that even without a warrant the results of a blood draw may be admissible

if the defendant gave valid consent. See Birchfield, 136 S.Ct. at 2185-86.

Whether consent is valid under Birchfield depends on what the

consenter was told about the consequences of refusal. See

Commonwealth v. Evans, 153 A.3d 323, 329-31 (Pa.Super. 2016).

Because Haines did not raise his claim before trial, the record does not

contain sufficient information from which to determine whether his consent

was valid. See id. at 331 (remanding for hearing on validity of appellant’s

consent). As a result, although we are sympathetic to Haines’ position, we

cannot grant him the relief he requests. His claim is best addressed under

the PCRA, when an appropriate record can be developed.

Judgment of sentence affirmed.16
____________________________________________

16
We note that Haines may have a cognizable ineffective assistance of
counsel claim based on trial counsel’s failure to file a motion to suppress
Haines’ BAC results or to address Birchfield prior to Haines’ trial. At
sentencing, the trial court recognized this issue, noting that in the absence
of a sentencing deal from the Commonwealth, the court would have to
sentence Haines on section 3802(c) and “effectively charge [Haines’ counsel]
(Footnote Continued Next Page)

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2017

_______________________
(Footnote Continued)

with ineffectiveness,” as “Birchfield was pending” in the United States
Supreme Court. N.T., 8/26/16, at 7. However, we also acknowledge
concern about whether Haines would be able to obtain PCRA relief, if
appropriate, due to his short sentence. As the trial court itself noted, Haines
may well “serve his sentence by the time he completes the PCRA process.”
N.T., 8/26/16, at 9. Should Haines file a timely PCRA petition, we encourage
the PCRA court to expedite consideration of his petition. Of course, we make
no determination as to the merits of Haines’ claim, as original jurisdiction in
these matters is vested in the court of common pleas. See 42 Pa.C.S. §
9545(a).

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