Com. v. King, R. ( 2018 )


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  • J-A08018-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
    :
    :
    v.                             :
    :
    :
    RAYMOND SCOTT KING                         :
    :   No. 3891 EDA 2016
    Appellant               :
    Appeal from the Judgment of Sentence Entered December 1, 2016
    In the Court of Common Pleas of Montgomery County Criminal Division
    at No(s): CP-46-CR-0001074-2016
    BEFORE:      PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.
    MEMORANDUM BY LAZARUS, J.:                                 FILED JUNE 27, 2018
    Raymond Scott King appeals from his judgment of sentence, entered in
    the Court of Common Pleas of Montgomery County, following his conviction
    after a non-jury trial of one count of Driving Under the Influence (DUI) —
    highest rate of alcohol,1 and one count of DUI — general impairment.2 After
    careful review, we affirm.
    The trial court summarized the relevant facts underlying this case as
    follows:
    On September 5, 2015, at roughly 10:49 P.M., Officer [Matthew]
    Musselman (“the affiant”) of the Lower Pottsgrove Township Police
    Department was dispatched to 2596 Pruss Hill Road in
    Montgomery County, Pennsylvania, upon report of a motor vehicle
    accident. The affiant arrived on [the] scene and found [King]
    ____________________________________________
    1   75 Pa.C.S. § 3802(c).
    2   75 Pa.C.S. § 3802(a)(1).
    ____________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-A08018-18
    sitting in the middle of the road, with his black motorcycle laying
    nearby. The affiant noticed [King’s] bloodshot eyes and detected
    an alcohol[] odor emanating from his person. However, when
    asked, [King] told the affiant he had not been drinking. The affiant
    also observed blood on the seat of [King’s] motorcycle and on his
    pants.
    First responder to the scene, Matthew Burfete (“the paramedic”),
    testified at the December 1, 2016, bench trial as to his
    observations of the scene of [King’s] motorcycle accident and the
    resulting injuries on September 5, 2015. The paramedic was a
    firefighter and paramedic for about five (5) years at the time of
    the incident, and in that time had previously encountered and
    became familiar with the effects of alcohol on a person. The
    paramedic found [King] in the middle of the roadway and his
    motorcycle lying on its side nearby in a ditch. According to the
    paramedic, [King] acted, ‘slightly confused and somewhat
    uncooperative[,]’ while he was being examined for injuries.
    [King’s] injuries included a right femur fracture and a dislocation
    or fracture of the right knee; yet, [King] initially refused any offer
    to help him stand and be placed onto the litter (‘gurney’), insisting
    he be allowed to do so himself. The paramedic testified individuals
    who suffer the type of injury [King] suffered typically are
    unwilling, not to mention unable, to stand, as the case ultimately
    turned out to be for [King]. [King] was eventually convinced to
    allow paramedics to help him onto the gurney and in the back of
    the ambulance, after which paramedics more thoroughly
    examined [King] and obtained his vital signs. While en route to
    the hospital the paramedic spoke with [King] to determine, inter
    alia, how the accident occurred and whether [King] had been
    drinking. [King] admitted to drinking two (2) glasses of wine to
    the paramedic, which contrasted with his previous statement to
    the affiant that he had not been drinking anything[.]
    At the   end of his direct examination, the paramedic testified that
    based    upon his observations, i.e., odor of alcohol; bloodshot,
    glassy   eyes; strange, uncooperative behavior, it was his belief
    [King]   was intoxicated on the night of the incident, September 5,
    2015.
    [King] was taken to nearest trauma center at West Reading
    Hospital, approximately thirty (30) to forty (40) minutes away
    from the scene of the accident. The affiant was stationed outside
    [King’s] hospital room, whereupon he observed an intravenous
    (IV) line in [King’s] arm and medical personnel with several vials
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    of [King’s] blood (from a blood draw conducted by the hospital in
    treating [King’s] injuries) inside the trauma bay. Later, when the
    affiant was able to enter [King’s] hospital room, he read to [King]
    the DL-26 form containing an enhancement penalty clause for
    refusal to submit to blood testing, after which [King’s] blood was
    drawn (“‘legal’ blood draw”), this at the affiant’s direction; then
    placed in signed, sealed vials and given to the affiant to be sent
    to a lab for further testing. [King’s] blood was first drawn at the
    hospital’s direction for medical treatment purposes in accordance
    with hospital procedure (“‘medical’ blood draw”), before [King]
    was read the DL-26 form.
    The separate, ‘legal’ blood draw was conducted subsequent to the
    DL-26 form being read to [King], (again, the ‘medical’ blood draw
    preceded this ‘legal’ blood draw); the affiant collected the vials of
    blood from that ‘legal’ blood draw; and sent the samples to an
    independent lab for further testing.          The affiant specifically
    recalled the procedure in Montgomery County at the time was, in
    fact, to place collected blood vials in kits to be sent to a lab for the
    appropriate testing, as opposed to the hospital testing the blood-
    alcohol concentration (“BAC”) of individuals at the hospital. The
    trial court asked the affiant to clarify for the record, as follows:
    [THE COURT]:           Officer, let me just make sure I
    understand. The blood that you had
    taken as the result of the DL-26—
    [THE WITNESS]:         Yes?
    [THE COURT]:           -- did you take that blood with you for
    testing or was that testing done at the
    hospital?
    [THE WITNESS]:         No. That was taken with me back to
    the station.
    The affiant received vials of [King’s] blood taken from the ‘legal’
    blood draw at 12:41 A.M. on September 6, 2015.
    Trial Court Opinion, 8/7/17, at 1-4 (internal citations and footnotes omitted).
    On July 12, 2016, King filed his first motion to suppress, objecting to
    the admission of the results of the ‘legal’ blood draw that was conducted
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    pursuant to the DL-26 form. In this first motion, King argued that, pursuant
    to Birchfield v. North Dakota, 
    136 S. Ct. 2160
     (2016),3 the warrantless
    blood    draw    was     unconstitutional,     because   there   were   no   exigent
    circumstances to overcome the warrant requirement and King’s consent to the
    ‘legal’ blood draw was coerced by the threat of enhanced criminal penalty in
    the pre-Birchfield DL-26 form.
    Because of the challenge to the ‘legal’ blood draw, the affiant prepared
    and filed the first search warrant application and an affidavit of probable cause
    on July 27, 2016, seeking the results of the ‘medical’ blood draw that was
    ordered by the hospital in conjunction with its treatment of King. Though it
    contained irrelevant references to the affiant’s training and familiarity with
    illegal controlled substances, the affidavit primarily consisted of the facts and
    circumstances surrounding the September 5, 2015 motorcycle accident.
    Specifically, observations of King’s bloodshot, glassy eyes, the scent of alcohol
    coming from him, and King’s admission to drinking before the crash served as
    probable cause to search the medical records from West Reading Hospital.
    The first search warrant (the “July Warrant”) was executed on the same day,
    seizing the results of King’s ‘medical’ blood draw, which had to be sent to NMS
    ____________________________________________
    3 In Birchfield, the United States Supreme Court held that because the taking
    of a blood sample is a search within the meaning of the Fourth Amendment to
    the Constitution, police officers may not compel the taking of a blood sample
    without a search warrant. Birchfield, 136 S. Ct. at 2184. The Birchfield
    court found laws that impose criminal penalties for refusing to consent to a
    blood test are unconstitutional because “motorists cannot be deemed to have
    consented to submit to a blood test on pain of committing a criminal offense.”
    Id. at 2185.
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    J-A08018-18
    Labs to be converted from ethanol to blood alcohol concentration.           The
    toxicology report from NMS Labs reflects the conversion to blood alcohol
    concentration, which was at the high rate of 0.272%.
    On August 11, 2016, a suppression hearing was held on King’s July 12,
    2016 motion to suppress the blood results derived from the ‘legal’ blood draw.
    The trial court granted King’s motion, reasoning the ‘legal’ blood draw
    conducted on King pursuant to the DL-26 form was unconstitutional in
    accordance with the United States Supreme Court’s holding in Birchfield.
    On August 17, 2016, King filed his second motion to suppress, this time
    seeking to suppress the results of the ‘medical’ blood draw seized through the
    July Warrant. In his second motion, King argued the July affidavit of probable
    cause contained “misleading and/or         inaccurate   information” that the
    magisterial district judge used to form the basis for the issuance of the search
    warrant and that the results of the ‘medical’ blood draw were “fruit of the
    poisonous tree” suppressed by the trial court at the first suppression hearing
    on August 11, 2016.
    Because of King’s challenges to the July Warrant, on September 17,
    2016, the affiant filed a second search warrant application and affidavit of
    probable cause. Therein, the affiant sought additional medical records in order
    to assist the Commonwealth in proving the ‘medical’ blood draw was
    legitimately conducted by medical personnel for purposes of independent
    medical treatment and the results thereof were not fruit of the warrantless
    ‘legal’ blood draw. The September affidavit contained the same observations
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    to support probable cause as the July affidavit, though the September affidavit
    omitted the irrelevant information and immaterial references to illegal drugs
    included in the July affidavit, i.e., the affiant’s law enforcement background in
    investigating illegal controlled substances crimes, and a note about Reading
    Hospital’s “common practice . . . to test a patient’s blood for alcohol and or
    illegal narcotics.” N.T. Suppression Hearing, 11/9/16, at 53-56, 60. A warrant
    was issued pursuant to the September 17, 2016 application (the “September
    Warrant”) on the same day. The September Warrant authorized the seizure
    of the relevant records, which indicated the ethanol test of King’s blood was
    ordered by medical personnel, Elaine Miller, R.N., for the purpose of safely
    treating King’s extensive injuries.
    On November 7, 2016, King filed his third motion, seeking to suppress
    his medical records documenting the parties responsible for ordering the
    ‘medical’ blood draw, and the reasoning for same. In this third motion to
    suppress, King argued the September affidavit of probable cause, like the July
    affidavit, contained “misleading and/or inaccurate information” that the
    magisterial district judge used to form the basis for the issuance of the
    subsequent search warrant, and that specific medical records were “fruit of
    the poisonous tree” suppressed by the trial court at the first suppression
    hearing on August 11, 2016.
    On November 9, 2016, a second suppression hearing was held to
    address King’s second and third motions to suppress the results of the
    ‘medical’ blood draw, seized upon the execution of the July Warrant, and the
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    medical records documenting the parties responsible for ordering the ‘medical’
    draw and the reasoning for same, which were seized upon the execution of
    the September Warrant. After the hearing, the trial court concluded that the
    ‘medical’ and ‘legal’ blood draws were separate and distinct, the first being
    legitimately conducted for medical treatment purposes, and the latter being
    done for purposes of criminal prosecution and pursuant to the DL-26 form.
    Trial Court Opinion, 8/7/17, at 8. Therefore, King’s second and third motions
    to suppress were denied.
    After a bench trial before the Honorable Gail A. Weilheimer on December
    1, 2016, King was found guilty of driving under the influence — highest rate
    of alcohol and driving under the influence — general impairment. The court
    sentenced King to seventy-two (72) hours’ to six (6) months’ imprisonment,
    and ordered him to submit to both Court Reporting Network and drug and
    alcohol evaluations, to comply with subsequent treatment recommendations,
    to attend safe-driving school, and to surrender his driver’s license to the clerk
    of courts.
    King filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)
    concise statement of errors complained of on appeal.           On appeal, King
    presents the following issues for our consideration:
    1. Whether the trial court erred in denying [King’s] [m]otion to
    [s]uppress because the affidavit of probable cause used to obtain
    the July 27, 2016 search warrant contained material
    misstatements of fact which caused the neutral and detached
    magistrate to erroneously believe that [King] was under
    investigation for driving under the influence of illegal drugs?
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    2. Whether the trial court erred in denying [King’s] [m]otion to
    [s]uppress because the affidavit of probable cause used to obtain
    the September 17 [sic], 2016 search warrant was misleading and
    the evidence obtained through this warrant was not from an
    independent source?
    3. Whether the evidence at trial was insufficient to prove [King]
    guilty [of DUI — highest rate] beyond a reasonable doubt where
    the Commonwealth produced no evidence to prove the time at
    which the accident occurred, and if [King’s] medical records are
    suppressed by this Court, the Commonwealth produced no
    evidence to prove [King’s] blood alcohol concentration?[4]
    Appellant’s Brief, at 5.
    Our standard of review when assessing a challenge to the denial of a
    motion to suppress is well-established.          Review is limited to whether the
    record supports the suppression court’s factual findings and whether the legal
    conclusions drawn from those facts are correct. Commonwealth v. Jones,
    
    988 A.2d 649
    , 654 (Pa. 2010). Where the record supports the factual findings
    of the suppression court, we are bound by those findings and reverse only if
    the court’s legal conclusions are erroneous.         
    Id.
       When the appeal of the
    determination of the suppression court turns on allegations of legal error, the
    legal conclusions of the suppression court are not binding on the appellate
    court, which must determine if the law was properly applied to the facts. 
    Id.
    In essence, King attacks the trial court’s denial of his motions to
    suppress on the grounds that the affidavits of probable cause for both search
    warrants contained material misstatements of fact that should invalidate the
    warrants.     Misstatements of fact in a search warrant affidavit will invalidate
    ____________________________________________
    4   King does not challenge his DUI — general impairment conviction.
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    a search and require suppression only if they are deliberate and material.
    Commonwealth v. Mickell, 
    598 A.2d 1003
    , 1010 (Pa. Super. 1991); see
    also Commonwealth v. Zimmerman, 
    422 A.2d 1119
    , 1124 (Pa. Super.
    1980) (“appellant must establish that the police (1) made a misstatement,
    which is both (2) deliberate and (3) material”). A material fact is one “without
    which probable cause to search would not exist.”          Commonwealth v.
    Minoske, 
    441 A.2d 414
    , 418 (Pa. Super. 1982).           In deciding whether a
    misstatement is material, the test is if the misstatement is essential to the
    affidavit.   Mickell, 
    598 A.2d at 1010
    .    In order to determine whether the
    misstatements are essential, they must be deleted from the application, and
    if probable cause still exists within the affidavit, the misstatements are
    immaterial. Commonwealth v. Yucknevage, 
    390 A.2d 225
    , 227 (Pa. Super.
    1978).
    Here, King objects to the inclusion of the affiant officer’s employment
    background and familiarity with illegal substances, because the affiant only
    suspected King of driving under the influence of alcohol, not a controlled
    substance. Appellant’s Brief, at 25-26. The July 27, 2016 affidavit contained
    seven (7) references to illegal drugs, while the September 17, 2016 affidavit
    contained four (4), which King deems “still too many.” Id. at 34. King claims
    that these “misleading” references caused the magisterial district judge to
    believe King was under investigation for illegal drugs. Id. at 21-25. King
    asserts the misstatements were material and, by omitting them, probable
    cause to search King’s medical records did not exist. We disagree.
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    The alleged “defects” in the July 27, 2016 warrant’s affidavit of probable
    cause were not essential because without them, probable cause remained.
    Yucknevage, supra.        The statements included in the affidavit were not
    deliberate; the affiant, himself, classified the references to his experience with
    illegal controlled substances, which were irrelevant to King’s case, as “clerical
    errors.”   N.T. Suppression Hearing, 11/9/16, at 67, 69.            Without the
    statements regarding the affiant’s background and the hospital’s typical
    practices of testing for alcohol and illegal controlled substances, the affidavit
    still contained descriptions of King’s bloodshot, glassy eyes, the scent of
    alcohol emanating from him, and King’s admission to drinking before the
    crash. The affiant made an immaterial error by including his experience with
    controlled substances in the July 27, 2016 affidavit, and, without those
    statements, probable cause remained to search King’s medical records for
    blood tests and his blood alcohol concentration.
    Because the September 17, 2016 affidavit of probable cause listed these
    same factual underpinnings, with fewer references to illegal drugs, probable
    cause also existed for the issuance of the second search warrant. Further, the
    September Warrant sought additional information, specifically, the medical
    personnel responsible for the draw and the reasons for same.          The affiant
    applied for this second warrant after the challenge to the July Warrant, in
    order to assist the Commonwealth in proving the ‘medical’ blood draw was
    distinct from the ‘legal’ blood draw. This court has held that results from blood
    draws conducted for independent medical treatment of DUI suspects, which
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    are seized through a validly obtained and executed search warrant, should not
    be suppressed. Commonwealth v. Miller, 
    996 A.2d 508
    , 515-16 (Pa. Super.
    2010). On appeal, King does not dispute that the ‘medical’ blood draw was
    legitimately conducted for independent medical treatment.         Because the
    ‘medical’ blood draw was legitimately conducted for the purpose of
    independent medical treatment, the trial court did not err in denying King’s
    motions to suppress.5
    Finally, King argues the evidence was insufficient to prove beyond a
    reasonable doubt that his blood alcohol concentration was in the highest rate
    within two hours of the accident.6 Appellant’s Brief, at 47-61. We find this
    argument to be meritless.
    In assessing the sufficiency of the evidence, we must view “all evidence
    and reasonable inferences therefrom in the light most favorable to the
    Commonwealth, as the verdict winner, and consider whether the trier of fact
    could have found that each element of the offense charged was supported by
    evidence and inference[s] sufficient to prove guilt beyond a reasonable
    doubt.” Commonwealth v. Brown, 
    701 A.2d 252
    , 254 (Pa. Super. 1997)
    ____________________________________________
    5 King claims that because the warrants are invalid, the Commonwealth cannot
    prove his blood alcohol concentration beyond a reasonable doubt. Given our
    finding that the warrants were valid, we do not need to address this part of
    his sufficiency claim.
    6 (As required to support a conviction for DUI — highest rate of alcohol under
    75 Pa.C.S. § 3802(c)). Although the Commonwealth argues that the issue of
    timing has been waived, we find that the issue has been preserved for our
    review. See, Appellant’s Concise Statement, 2/3/2017.
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    (citations omitted). The Commonwealth “may sustain its burden by proving
    the crime’s elements with evidence which is entirely circumstantial and the
    trier of fact, who determines credibility of witnesses and the weight to give
    the evidence produced, is free to believe all, part, or none of the evidence.”
    Id.
    Here, the evidence adduced at trial demonstrated the following: the
    affiant received a call at 10:49 P.M. from dispatch, which came after a witness
    reported a one-vehicle motorcycle accident; the affiant arrived on the scene
    to find still-wet blood on the seat of the motorcycle and pooled beneath King,
    indicating the accident had occurred recently; and, after the paramedic team
    transported King to West Reading Hospital, the ‘medical’ blood draw was
    ordered at 11:55 P.M., only one hour and six minutes after the call to the
    affiant. This blood draw showed a blood alcohol concentration of 0.272%.
    From these circumstances, it was reasonable for the trial court to infer that
    King’s blood alcohol concentration was above the highest rate of alcohol7
    within two hours of operating his motorcycle. Accordingly, King’s sufficiency
    claim is meritless.
    Judgment of sentence affirmed.
    ____________________________________________
    7See 75 Pa.C.S. § 3802(c) (classifying a blood alcohol concentration of 0.16%
    or higher as the highest rate of alcohol).
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/27/18
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