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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RICHARD H. PHILLIPS
Appellant No. 3190 EDA 2015
Appeal from the Judgment of Sentence April 21, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR0000624-2014
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 30, 2016
Appellant, Richard H. Phillips, appeals from the judgment of sentence
entered in the Monroe County Court of Common Pleas, following his bench
trial convictions for driving under influence of alcohol or controlled substance
(“DUI”), general impairment, and the summary traffic offenses of maximum
speed limits and driving on roadways laned for traffic.1 We affirm.
The relevant facts of this case as taken from the certified record are as
follows. On December 28, 2013, at approximately 2:42 a.m., Pennsylvania
State Trooper Michael Thomas observed a black GMC Envoy proceeding west
on Interstate 80. Trooper Thomas followed the vehicle, observed it swerve
____________________________________________
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(a)(2), 3362, 3309, respectively.
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over the centerline and fog line three times, and clocked the vehicle
traveling 72 miles per hour in a posted 55 miles per hour zone. Trooper
Thomas then initiated a traffic stop and made contact with Appellant, asking
for his vehicle paperwork. During the course of the stop, Trooper Thomas
smelled the odor of alcohol emanating from Appellant’s vehicle and observed
Appellant fumbling his vehicle paperwork. Trooper Thomas also observed
Appellant had bloodshot, glassy eyes and mumbled, slurred speech. At
Trooper Thomas’s request, Appellant exited his vehicle and performed field
sobriety tests, including the one-leg stand test, the walk-and-turn test, and
the portable breath test. Trooper Thomas indicated that Appellant had not
performed well on the one-leg stand test and the walk-and-turn test, so
Trooper Thomas administered the portable breath test, which indicated
Appellant’s blood alcohol content (“BAC”) exceeded the legal limit.
Thereafter, Trooper Thomas took Appellant to the Monroe County DUI
Center where Appellant consented to a blood draw. A phlebotomist drew
Appellant’s blood into a tube, properly labeled it, and placed it in a
refrigerator in view of the Center’s camera. The blood tube then was
transported to Wyoming Regional Laboratory, where a forensic scientist
analyzed the blood sample and issued a report indicating Appellant’s BAC
was 0.091%. The forensic scientist testified that the standard tube used in
blood draws is a gray-top tube, which contains sodium fluoride and
anticoagulants, and when the forensic scientist analyzed Appellant’s blood
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sample, he checked the integrity of the blood sample and confirmed it
contained Appellant’s blood.
Procedurally, the Commonwealth filed a criminal complaint on
February 27, 2014. On March 25, 2014, Appellant waived his right to a
preliminary hearing. The Commonwealth charged Appellant on April 23,
2014, with two counts of DUI, general impairment, (incapable of safe driving
and BAC between 0.08% and 0.10%) and three summary traffic offenses
(maximum speed limits, driving on roadways laned for traffic, and careless
driving).
Appellant filed an omnibus pretrial motion requesting the following: (a)
to order the laboratory to provide blood testing procedure documents; and
(b) to suppress evidence related to the vehicle stop based on Appellant’s
assertion that the police did not have probable cause to stop him or
reasonable suspicion to conduct field tests or blood draws. After briefing and
a suppression hearing, the court denied Appellant’s requests.
The court held a bench trial and found Appellant guilty of one count of
DUI, general impairment (BAC between 0.08% and 0.10%), and the
summary traffic offenses of maximum speed limits and driving on roadways
laned for traffic. The court sentenced Appellant on April 22, 2015, to
electronic monitoring/house arrest for a period of 30 days for DUI, to pay
fines and costs, to complete a drug and alcohol treatment program
successfully, and to undergo a license suspension for a period of 12 months.
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The court also sentenced Appellant to pay fines and costs for the summary
traffic offenses. Appellant filed a timely post-sentence motion, challenging
the weight and sufficiency of the evidence and seeking reconsideration of the
court’s suppression ruling. The court denied Appellant relief. Appellant timely
filed a notice of appeal.
Appellant raises two issues for our review:
WAS [APPELLANT’S] BLOOD DRAWN AS A RESULT OF CONSENT
THAT WAS GIVEN WHILE HE WAS UNLAWFULLY DETAINED?
HAS THE COMMONWEALTH PRODUCED SUFFICIENT EVIDENCE
THAT [APPELLANT] WAS DRIVING AFTER IMBIBING [ALCOHOL]
WITH A BLOOD ALCOHOL PERCENTAGE GREATER THAN .08[%]
WHEN THE PHLEBOTOMIST [DID] NOT IDENTIFY THE MAN ON
THE VIDEO FROM WHICH SHE DREW BLOOD AS [APPELLANT]
AND NO EVIDENCE OF PROPER HANDLING OF THE BLOOD
[WAS] ADMITTED?
Appellant’s Brief, at 5.
For purposes of disposition, we address Appellant’s issues together.
Appellant argues Trooper Thomas did not possess reasonable suspicion that
Appellant was under the influence of alcohol to continue his detention, after
Trooper Thomas initiated the traffic stop. Appellant reasons the odor of
alcohol emanating from his vehicle, bloodshot eyes, and mumbled and
slurred speech do not constitute signs of impairment to suggest he was
driving under the influence. Appellant further explains Trooper Thomas was
unable to recall the specific details of Appellant’s field sobriety test failures
and is inherently biased because he presumes all vehicle stops are DUI-
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related unless convinced otherwise. So, Appellant insists Trooper Thomas’s
continued detention of Appellant after the initial traffic stop was unlawful and
Appellant’s later consent to withdraw blood should have been suppressed.
Our standard of review of the denial of a motion to suppress evidence
is as follows:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only
the evidence of the Commonwealth and so much of the evidence
for the defense as remains uncontradicted when read in the
context of the record as a whole. Where the suppression court’s
factual findings are supported by the record, [the appellate court
is] bound by [those] findings and may reverse only if the court’s
legal conclusions are erroneous. Where … 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 [the] 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 [trial court are] subject to …
plenary review.
Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super. 2012).
The suppression court’s factual findings are supported by the record.
Accordingly, we focus our attention on the propriety of the suppression
court’s legal conclusions—most importantly, that the stop was lawful.
The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect citizens from
unreasonable searches and seizures. See Commonwealth v. Carter, 105
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A.3d 765, 768 (Pa.Super. 2014) (en banc), appeal denied, 117 A.3d 295
(Pa. 2015). “While warrantless seizures such as a vehicle stop are generally
prohibited, they are permissible if they fall within one of a few well-
delineated exceptions.” Commonwealth v. Brown, 996 A.2d 473, 476 (Pa.
2010) (citation omitted). For purposes of this case, a pertinent exception is a
traffic stop authorized by 75 Pa.C.S.A. § 6308(b).
Under § 6308(b),
when 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.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).
The Motor Vehicle Code defines the offense of maximum speed limits
as follows:
§ 3362. Maximum speed limits
(a) General rule.―Except when a special hazard exists that
requires lower speed for compliance with section 3361 (relating
to driving vehicle at safe speed), the limits specified in this
section or established under this subchapter shall be maximum
lawful speeds and no person shall drive a vehicle at a speed in
excess of the following maximum limits:
* * *
(2) 55 miles per hour in other locations.
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The Motor Vehicle Code also defines the offense of driving on roadways
laned for traffic as follows:
§ 3309. Driving on roadways laned for traffic
Whenever any roadway has been divided into two or more
clearly marked lanes for traffic the following rules in addition to
all others not inconsistent therewith shall apply:
(1) Driving within single lane.―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.
* * *
The Crimes Code defines the offense of DUI as follows:
§ 3802. Driving under the influence of alcohol.
(a) General impairment.—
* * *
(2) 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 0.08% but less than
0.10% within two hours after the individual has driven, operated
or been in actual physical control of the movement of the
vehicle.
Instantly, the trial court analyzed Appellant’s first issue concerning the
evidence of the vehicle stop and ensuing DUI arrest as follows:
In denying [Appellant’s] motion in this case, we specifically
found that the State Police had probable cause to stop
[Appellant]. Our finding was based on and fully supported by the
testimony of Trooper [Thomas], whom was found credible, that
he had clocked [Appellant] going 72 miles per hour (MPH) in a
posted 55 MPH zone and that he observed [Appellant] sway
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back-and-forth in his lane of travel and cross the fog line three
times. Clocking a driver exceeding the posted speed limit by 17
MPH and seeing the driver swerve across the fog line three times
on an Interstate Highway clearly constitutes probable cause that
the driver committed the violations of [maximum speed limits]
and [driving on roadways laned for traffic].
We also indicated that the above facts, coupled with other
surrounding circumstances, probably constituted sufficient
reasonable suspicion to stop [Appellant] for suspicion of DUI.
Again, the testimony of Trooper [Thomas] supported our
determination.
Finally, we found that the above facts, coupled with Trooper
[Thomas’s] sensory observations after stopping [Appellant] were
constitutionally sufficient to justify a continuing investigatory
detention, including the administration of field sobriety tests,
and, as the investigation evolved, to support probable cause for
an arrest and chemical testing of [Appellant’s] blood. This
finding, in turn, was supported by the above facts plus Trooper
[Thomas’s] credible testimony that he smelled alcohol
[emanating from Appellant’s vehicle], that [Appellant’s] speech
was slurred and mumbled, that [Appellant] had difficulty
gathering his license and registration, and subsequently that
[Appellant] failed a field test and a preliminary breath test for
which he had trouble producing a breath sample.
Trial Court Opinion, filed December 21, 2015, at 5-6 (internal citations to the
record omitted). The record supports the trial court’s sound reasoning.
Trooper Thomas had probable cause to initiate a valid traffic stop as he
observed Appellant violate the Vehicle Code by speeding and crossing the
centerline several times. See 75 Pa.C.S.A. §§ 3362, 3309. Once legally
stopped, he observed that Appellant’s eyes were glassy and bloodshot,
Appellant’s speech was mumbled and slurred, and Appellant’s vehicle
emanated the odor of alcohol. These conditions provided reasonable
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suspicion for Trooper Thomas to investigate further. Trooper Thomas then
removed Appellant from the vehicle and performed sobriety tests, which
Appellant failed.
Based on his observations and the failed sobriety tests, Trooper
Thomas possessed probable cause to arrest Appellant for DUI. See 75
Pa.C.S.A. § 3802(a)(2); Commonwealth v. Hilliar, 943 A.2d 984
(Pa.Super. 2008) (holding probable cause existed to arrest driver for DUI
where driver smelled of alcohol and his speech was slurred). Thus,
Appellant’s arrest for DUI did not violate his constitutional rights. The trial
court properly denied Appellant’s motion to suppress the evidence of DUI on
this ground. See Hoppert.
In his final issue, Appellant avers the Commonwealth failed to present
sufficient evidence to prove that Appellant’s BAC was at least 0.08%, but
less than 0.10%, because Appellant was not connected to the blood draw.
Specifically, Appellant complains the Commonwealth failed to ask the
phlebotomist to identify Appellant in the video shown to her, which depicted
the night of Appellant’s blood draw. Alternatively, Appellant contends the
phlebotomist did not indicate that she mixed the blood sample by shaking it
after drawing Appellant’s blood into the gray-top tube, so Appellant asserts
the accuracy of the blood sample is flawed and the BAC results should be
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discarded. Appellant concludes this Court should vacate the judgment of
sentence and remand for further proceedings.2 We disagree.
A challenge to the sufficiency of evidence implicates the following
principles:
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 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 evidence.
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2
Preliminarily, we observe any issues not raised in a Rule 1925(b)
statement will be deemed waived on appeal. See Commonwealth v.
Jackson, 10 A.3d 341, 347 n.4 (Pa. Super. 2010); Pa.R.A.P.1925(b)(4)(vii).
See also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“[I]n
order to preserve their claims for appellate review, appellants must comply
whenever the trial court orders them to file a[s]tatement of [m]atters
[c]omplained of on [a]ppeal pursuant to [Rule] 1925.”) Instantly, to the
extent Appellant argues the Commonwealth failed to present sufficient
evidence connecting Appellant to the blood draw, this argument is waived
for Appellant’s failure to include it in his Rule 1925(b) statement.
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Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations
omitted) (emphasis added).
“There is no need for the Commonwealth to prove beyond a doubt the
sanctity of a blood sample after it is withdrawn from a driver. The
Commonwealth must simply establish a reasonable inference that the
sample was unimpaired until it was brought to court.” Commonwealth v.
Allen, 575 A.2d 131, 134 (Pa. Super. 1990) (citing Commonwealth v.
Miller, 339 A.2d 573 (Pa. Super. 1975)).
With respect to Appellant’s complaint about the blood sample, the
court reasoned as follows:
The [Appellant] was … transported to Monroe County DUI Center
to have his blood drawn by the phlebotomist, Tracy Brown. The
blood sample was then sent to the Wyoming [Regional
Laboratory] where[, the forensic scientist,] John Schlenker[,]
analyzed the blood sample. At the trial, John Schlenker testified
as an expert and that he performed the analysis on the
[Appellant’s] blood and that the result was 0.091% to a
reasonable degree of scientific certainty. John Schlenker testified
that he checked the integrity of the blood sample, that the test
tube had the appropriate gray stopper top before he performed
the test and that the tube contained the anticoagulants.
* * *
In the instant case, we find that, in viewing the evidence in the
light most favorable to the Commonwealth, as the verdict
winner, the evidence presented at the bench trial establishes
each element of the crime charged and the commission thereof
by the accused beyond a reasonable doubt.
Trial Court Opinion, filed September 24, 2015, at 3-4 (internal citations to
the record omitted). We agree.
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We also note the Commonwealth did not need to prove the sanctity of
the blood sample by showing the phlebotomist mixed it; the Commonwealth
established a reasonable inference that the sample was unimpaired until it
was brought to court. See Allen. Based on the foregoing, we conclude
Appellant’s issues are without merit. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2016
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