J. A34015/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRANDIN LEE MITCHELL, : No. 13 MDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, August 19, 2013,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0003155-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 12, 2015
Appellant appeals from the judgment of sentence entered following
appellant’s conviction on two driving under the influence (“DUI”) of alcohol
offenses. Finding no merit in the issues on appeal, we affirm as to those
issues; however, we also find, sua sponte, that appellant has been
sentenced to an illegal sentence. Consequently, we will vacate one of
appellant’s sentences.
Appellant was charged with DUI as a result of an accident on West
Market Street in West York Borough on February 19, 2012. Appellant filed a
pre-trial motion seeking to suppress the results of a blood alcohol test taken
after the accident. A hearing on the motion adduced the following facts.
Appellant’s 1998 Audi A6 collided with a Dodge Durango parked on the
side of the street. (Suppression notes of testimony, 8/2/12 at 6.) There
J. A34015/14
were no skid marks indicating appellant applied his brakes. (Id. at 9.) The
impact was so powerful that the Durango was pushed partially onto the
grass along the street, and also struck the vehicle in front of it, which vehicle
struck the vehicle in front of it. (Id. at 7, 11.) The airbag in appellant’s car
deployed. (Id. at 12.) When Police Officer Michael Carricato
(“Officer Carricato”) arrived, he found appellant very disoriented and with
very bloodshot eyes. (Id. at 8-9.) Appellant was unable to relate where he
was coming from or where he was going to at the time. (Id. at 8.)
Officer Carricato did not conduct a field sobriety test at the scene because
appellant had a leg injury and was limping. (Id. at 17-18.) Appellant was
transported to York Hospital where Officer Carricato followed and requested
that appellant submit to a blood draw to which he consented. (Notes of trial
testimony, 6/27/13 at 26.) Appellant’s blood alcohol concentration was
measured at 0.120%. (Id. at 80.)
Following a bench trial on June 27, 2013, appellant was convicted of
DUI -- general impairment and DUI -- high rate of alcohol.1 On August 19,
2013, appellant was sentenced to two concurrent sentences of 6 months’
intermediate punishment with 90 days’ house arrest. This timely appeal
followed.
Appellant raises the following issues on appeal:
A. DID THE TRIAL COURT COMMIT AN ERROR OF
LAW WHEN IT DENIED APPELLANT’S MOTION
1
75 Pa.C.S.A. §§ 3802(a)(1) and 3802(b), respectively.
-2-
J. A34015/14
TO SUPPRESS EVIDENCE REGARDING BLOOD
ALCOHOL CONCENTRATION BECAUSE THE
ARRESTING OFFICER LACKED EVEN A
SCINTILLA OF PROBABLE CAUSE TO SUPPORT
ANY VIOLATION OF 75 PA. C.S.A. §3802
RELATING TO DRIVING UNDER THE
INFLUENCE OF ALCOHOL OR A CONTROLLED
SUBSTANCE?
B. DID THE TRIAL COURT COMMIT AN ERROR OF
LAW IN ALLOWING THE CONVICTION TO
STAND AS THE EVIDENCE PRESENTED AT
TRIAL ALONG WITH ALL REASONABLE
INFERENCES DRAWN THEREFROM WAS
LEGALLY INSUFFICIENT AS A MATTER OF LAW
TO SUSTAIN A VERDICT OF GUILTY?
Appellant’s brief at 5. We will address these issues in the order presented.
Our standard of review in addressing a challenge to a
trial court’s denial of a suppression motion is limited
to determining whether the factual findings are
supported by the record and whether the legal
conclusions drawn from those facts are correct.
[W]e 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. Gillespie, 103 A.3d 115, 118 (Pa.Super. 2014), quoting
Commonwealth v. Williams, H., 941 A.2d 14, 26-27 (Pa.Super. 2008)
(en banc) (internal citations and quotation marks omitted).
In his first issue, appellant contends that Officer Carricato did not have
reasonable suspicion to justify a request for a blood test from appellant. We
-3-
J. A34015/14
note that chemical testing of drivers is done with implied consent where the
police officer has reasonable grounds to believe that the operator is under
the influence of drugs or alcohol:
(a) General rule.--Any person who drives,
operates or is in actual physical control of the
movement of a vehicle in this Commonwealth
shall be deemed to have given consent to one
or more chemical tests of breath, blood or
urine for the purpose of determining the
alcoholic content of blood or the presence of a
controlled substance if a police officer has
reasonable grounds to believe the person to
have been driving, operating or in actual
physical control of the movement of a vehicle:
(1) in violation of section 1543(b)(1.1)
(relating to driving while operating
privilege is suspended or revoked),
3802 (relating to driving under
influence of alcohol or controlled
substance) or 3808(a)(2) (relating
to illegally operating a motor
vehicle not equipped with ignition
interlock);
75 Pa.C.S.A. § 1547(a)(1).
Thus, the issue is whether Officer Carricato had reasonable grounds to
believe appellant was under the influence of alcohol. Appellant contends
that “[Officer] Carricato in fact relied solely on the circumstance of the
automobile accident as his ‘reasonable grounds’ to obtain the sample.”
(Appellant’s brief at 20.) Appellant calls attention to the fact that
Officer Carricato admitted that appellant did not have an odor of alcohol on
him, nor did appellant exhibit slurred speech. Appellant also tries to
-4-
J. A34015/14
minimize other existing factors, such as suggesting that appellant’s
bloodshot eyes may have been caused when the car’s airbag deployed.
Finally, appellant calls attention to the fact that Officer Carricato performed
no field sobriety tests as indicating that Officer Carricato did not believe that
appellant was under the influence. We find that Officer Carricato stated
reasonable grounds.
There are three factors present that indicate that appellant may have
been under the influence: 1) very bloodshot eyes; 2) extreme disorientation
to the extent that appellant could not even say where he was coming from
or where he was going to; and 3) the nature of the accident: appellant
struck a stationary object at high speed without attempting to brake. We
think the coalescence of these diverse factors provided Officer Carricato with
the reasonable grounds to suspect appellant may have been under the
influence such that he could request a blood test. It is true that individual
factors might have innocent explanations. For instance, a person might
smell of alcohol because a drink was spilled on him, or in appellant’s case,
he might have bloodshot eyes because of allergies or because an airbag
deployed. However, these factors are also symptomatic of alcohol ingestion,
and where a number of suspicious factors come together, reasonable
grounds exist to suspect that an individual has been drinking.
Finally, we do not believe that Officer Carricato’s failure to administer
field sobriety tests is indicative that Officer Carricato did not believe that
-5-
J. A34015/14
appellant was under the influence. Officer Carricato testified that he did not
conduct sobriety tests because appellant’s leg was injured and he was
worried about appellant’s safety. Moreover, “[t]he definition of reasonable
grounds does not include, as a prerequisite, failure of field sobriety tests.”
McDonald v. Com., Dept. of Transp., Bureau of Driver Licensing, 567
A.2d 1127, 1129 (Pa.Cmwlth. 1989). We find that sufficient factors were
presented that Officer Carricato had reasonable grounds to believe that
appellant was under the influence of alcohol and was justified in requesting a
blood test. The suppression court properly denied suppression.
In his second issue, appellant argues that the evidence was not
sufficient to support his convictions. We apply the following standard of
review:
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 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 evidence actually
-6-
J. A34015/14
received must be considered. Finally, the [finder] 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 evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014), quoting
Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa.Super. 2014) (citations
omitted; bracketed material in original).
Appellant first challenges the sufficiency of the evidence as to his
conviction for DUI -- general impairment:
(a) General impairment.--
(1) An individual may not drive, operate or
be in actual physical control of the
movement of a vehicle after imbibing a
sufficient amount of alcohol such that the
individual is rendered incapable of safely
driving, operating or being in actual
physical control of the movement of the
vehicle.
75 Pa.C.S.A. § 3802(a)(1).
This offense has two elements: 1) the defendant was driving,
operating, or in actual physical control of the movement of a vehicle;
2) during the time when he or she was rendered incapable of safely doing so
due to the consumption of alcohol. Commonwealth v. Teems, 74 A.3d
142, 145 (Pa.Super. 2013), appeal denied, 79 A.3d 1098 (Pa. 2013).
Appellant concedes that the evidence was sufficient as to the first element,
actual physical control. (Appellant’s brief at 22.) We find that the evidence
as to the second element was likewise sufficient.
-7-
J. A34015/14
The evidence at trial included testimony from Officer Carricato as to
his on-the-scene observations that appellant exhibited signs of intoxication
such as appellant being disoriented and appellant’s eyes being “glassy,
glazed, and bloodshot.” (Notes of testimony, 6/27/13 at 24-25.) The trial
evidence also showed that a blood test was performed approximately one
hour later. (Id. at 22, 28 (time of dispatch, time of test).) Finally, medical
testimony that the blood test showed a blood alcohol concentration of
0.120% proved that appellant was actually under the influence of alcohol at
the time of the accident.
As to whether appellant’s consumption of alcohol rendered him
incapable of safely driving, we find that the circumstances of the accident
adequately demonstrate this. Appellant struck a car parked along the side
of the road at a very high rate of speed. This is not an instance where the
actions of another driver may have caused the accident. We find that the
nature of the accident itself is proof that appellant was incapable of safely
driving. The evidence was sufficient as to DUI -- general impairment.
Appellant also questions his conviction as to DUI -- high rate of
alcohol:
(b) High rate of alcohol.--An individual may not
drive, operate or be in actual physical control
of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the
alcohol concentration in the individual’s blood
or breath is at least 0.10% but less than
0.16% within two hours after the individual
-8-
J. A34015/14
has driven, operated or been in actual physical
control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(b).
Again, this offense has two elements: 1) the defendant was driving,
operating, or in actual physical control of the movement of a vehicle;
2) while his or her blood alcohol concentration was at least 0.10%, but less
than 0.16% within two hours after driving.
As previously noted, appellant conceded the first element and trial
evidence established the second element with the admission of the blood
test results of 0.120%. Consequently, the evidence at trial was sufficient to
support appellant’s conviction for DUI -- high rate of alcohol. Appellant’s
arguments on appeal go to whether Officer Carricato had reasonable
grounds to request a blood test and whether appellant’s consent was valid.
Such concerns go to the suppression of the blood test results and not the
sufficiency of the evidence. As such, they are irrelevant to a determination
of the sufficiency of the evidence. Moreover, we have already found that
Officer Carricato had reasonable grounds to request the test. As for the
validity of appellant’s consent, this issue was not raised in the pre-trial
suppression motion, nor was it argued at the suppression hearing.
-9-
J. A34015/14
Consequently, appellant is improperly raising that issue for the first time on
appeal and we find it waived.2 Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A.
Finally, we turn to the legality of appellant’s sentence. Although
appellant does not raise this issue, “[i]t is settled that a legality-of-sentence
issue ‘may be reviewed sua sponte by this Court,’ due to the fact that an
‘illegal sentence must be vacated.’” Commonwealth v. Stradley, 50 A.3d
769, 774, (Pa.Super. 2012), quoting Commonwealth v. Randal, 837 A.2d
1211, 1214 (Pa.Super. 2003).
The subsections of § 3802 are not separate offenses, and a defendant
may not be subjected to multiple penalties for violating more than one
subsection of the statute by a single criminal act. Commonwealth v.
McCoy, 895 A.2d 18, 26 (Pa.Super. 2006), affirmed, 975 A.2d 586 (Pa.
2009). See also Commonwealth v. Williams, 871 A.2d 254, 262-267
(Pa.Super. 2005). Thus, in McCoy we affirmed the trial court’s merging a
sentence for DUI -- general impairment with a sentence for DUI -- highest
rate of alcohol, 75 Pa.C.S.A. § 3802(c). Consequently, appellant’s separate,
concurrent sentence for DUI -- general impairment should have merged, for
sentencing purposes, with that for DUI -- high rate of alcohol. As vacating
2
We note in passing that the Commonwealth’s brief raises several
complaints as to appellant’s brief, including that this issue is being raised for
the first time on appeal. The Commonwealth’s other complaints go to
appellant’s characterization of the evidence and the overlong length of his
summary of argument. These other matters do not impede appellate
review, and we will not address them further.
- 10 -
J. A34015/14
this sentence will not upset the trial court’s sentencing scheme, we will
simply vacate the sentence without remand.
Judgment of sentence as to 75 Pa.C.S.A. § 3802(b) affirmed.
Judgment of sentence as to 75 Pa.C.S.A. § 3802(a)(1) vacated.
Jurisdiction relinquished.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 5/12/2015
- 11 -
Com. v. Mitchell, B.
Combined Opinion