Com. v. Boyce, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ADAM COLLIER BOYCE
Appellant No. 1143 MDA 2019
Appeal from the Judgment of Sentence Entered June 14, 2019
In the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0000642-2018
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
MEMORANDUM BY STABILE, J.: FILED: MAY 11, 2020
Appellant Adam Collier Boyce appeals from the June 14, 2019 judgment
of sentence entered in the Court of Common Pleas of Centre County (“trial
court”), following his stipulated bench conviction for three separate counts of
driving under the influence (“DUI”) of a controlled substance, disregarding a
traffic lane, careless driving, and improperly exiting a limited access highway.1
Upon review, we affirm.
Following a late-morning single vehicle accident that occurred on Route
322 West on January 31, 2018, Appellant was charged with the above-
mentioned offenses. Appellant waived his preliminary hearing. On June 6,
2018, Appellant filed an omnibus pretrial motion. Appellant argued that
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1 75 Pa.C.S.A. §§ 3802(d)(1)(ii), (iii) and (2), 3309(1), 3714(a), and 3312,
respectively.
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Officer Heather Royer had illegally detained him after the accident on January
31, 2018, and that any evidence obtained as a result of the detention must
be suppressed. Additionally, Appellant sought to suppress the results of his
blood test, arguing that he did not voluntarily consent to the blood draw. The
trial court conducted a two-day hearing at which both parties presented
witness testimony. The Commonwealth first called to the stand Officer Royer,
who worked as a police officer at the State College Police Department. N.T.
Suppression, 9/6/18, at 3-4. Officer Royer testified that she had been
employed at the police department for over 14 years. Id. at 4. According to
her testimony, she was trained to recognize impaired drivers, including those
under the influence of drugs. Id. She recalled completing various training
programs in that regard. Id. at 4-5. Officer Royer further recalled that she
had performed over 139 DUI stops in her 14-year career. Id. at 5. She
testified that, as a police officer, she has weekly DUI encounters. Id.
Officer Royer then testified about the January 31, 2018 incident
involving Appellant. While on routine patrol, she responded to and arrived at
the scene of a single vehicle accident that occurred at 11:59 a.m. Id. at 6-7.
According to Officer Royer, it was a “dry” day with “no adverse conditions” on
the 5300 block of Mount Nittany Expressway, a straight section of roadway in
Centre County, where the incident occurred. Id. at 6-7. Officer Royer testified
that when she arrived at the scene, she observed a silver SUV resting
“probably about 100 feet off the roadway.” Id. at 7. She specifically recalled
that “[t]here were tire impressions that I could see that went off the road.
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They went over, like, a dead tree—dead log that was there and then came to
rest against a fence and another tree on the driver’s side of the vehicle.” Id.
The driver of the vehicle “was in the driver’s seat” when Officer Royer arrived.
Id. at 8. Officer Royer identified the driver as Appellant based upon his
Pennsylvania driver’s license. Id. She recalled that she could not initially
speak to Appellant because “the tree was next to where he was seated.” Id.
at 9. However, when Appellant was later extracted from the vehicle, Officer
Royer conversed with him.
[H]e had said he had blacked out. He didn’t remember crashing.
He thought he could drive his vehicle from the scene. He stated—
I asked him where he was coming from. He said he had been
coming from the dentist in Lewistown. He said he had a tooth
pulled. So I asked him if he was on any medication from having
the tooth pulled, or did he have any prescriptions that he might
have been taking due to having the tooth pulled that would impair
his driving. He said no, that he had been numbed for the tooth
extraction, but he didn’t have any other medications. I asked him
if there was anything else that might have affected his driving. He
said, well, he had seizures in the past, and he hadn’t had one in a
year, but he didn’t remember driving from Lewistown to
Boalsburg. The last thing he remembered was leaving the dentist
office.
Id. at 9-10, 24-25. Officer Royer testified that Appellant informed her that
he “was headed to work in State College.” Id. at 10. Describing Appellant’s
mental state, Officer Royer remarked: “He seemed okay. I mean, he thought
that he could drive his vehicle from the scene, which he couldn’t, but he was
in the ambulance at the time, and he couldn’t see the vehicle, but he was able
to hold a conversation with me.” Id. Officer Royer recalled that Appellant
exhibited signs of impairment. Id. He “had bloodshot eyes. His face was
flushed. It was also bloody, though. His blood pressure and his heart rate
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were elevated.” Id. She described Appellant’s speech as “low and slow, which
is a possible indication of drug use.” Id. at 12. Officer Royer testified that,
based on her experience and training, she suspected Appellant to be under
the influence because “[h]e was involved in a one vehicle crash where there
were no adverse conditions[.]” Id. at 16. He drove his vehicle “off the road
in the middle of the day.” Id. at 29. Specifically, “[h]is vehicle went off the
road into a tree and a fence. He had bloodshot eyes, a flushed face. His heart
rate and blood pressure were elevated. He was unsteady getting out of the
vehicle.” Id. at 17. Additionally, according to Officer Royer, confusion,
memory loss and blackouts also are signs of impairment. Id. at 51.
Officer Royer, however, testified that she did not conduct a field sobriety
test because Appellant “was injured and eventually transported to the
hospital.” Id. at 13. She recalled that he had blood on his hands and his
face. Id. He also had blood “coming from his ear.” Id. Officer Royer testified
that Appellant was transported by ambulance to a hospital and that the
decision to take him there was not made by law enforcement. Id.
Officer Royer went the hospital, where she spoke with a couple of nurses
who were working in the emergency room. Id. at 14. “They had gone to high
school with [Appellant] and had told me he had been a drug user for the past
twenty years and that his girlfriend had died of a heroin overdose.” Id. The
nurses volunteered the information to Officer Royer. Officer Royer testified
that, while at the hospital, she consulted with Sergeant Kelly Aston and Officer
Brian Shaffer from Patton Township on the phone. Id. According to Officer
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Royer, Sergeant Aston happened to be in a meeting with former Assistant
District Attorney Michael Osterberg, with whom she consulted as well. Id. at
15. She shared with them the circumstances of Appellant’s accident. Id. at
14. The parties advised Officer Royer to request a blood draw from Appellant.
Id. at 15.
Officer Royer testified that she requested Appellant to submit to a blood
draw. Id. She provided and read to him the implied consent form, DL-26B.
Appellant consented, by signing the form. Id. at 16. He also agreed to the
hospital paperwork, separately consenting to the blood draw. Id. When
asked whether Appellant seemed confused as she was reviewing DL-26B with
him, Officer Royer answered:
No. He actually spoke to me more, I think it was when we were
waiting for the lab tech to come and draw the blood, and whenever
I read the DL-25 to him, he talked about he did remember then
going to his house to take his dog out when he left the dentist.
He told me he had wrecked on that same stretch of road before.
So he was conversant and seemed okay.
Id. Officer Royer testified that Appellant was not handcuffed when she read
him the DL-26B. Id. She also testified that she did not yell or raise her voice
at him at any point in time. Id. at 17. She did not threaten him. Id. She
also did not draw her weapon. Id. She did not use physical force against
Appellant. Id. She recalled that her investigation for this case indicated that
Appellant previously was arrested for DUI in 2006 and 2014. Id. at 20. The
Appellant’s blood was drawn at 2:00 p.m. Id. at 52.
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On cross-examination, Officer Royer acknowledged that another officer
had reached the scene of the accident before her. Id. at 21. She further
acknowledged that Sergeant Aston and Officer Shaffer were not at the scene
and did not observe Appellant. Id. at 22-23. Officer Royer conceded that she
did not witness the accident. Id. at 23. She also conceded that she did not
notice any odor of alcohol emanating from Appellant’s vehicle or his clothes.
Id. at 26-27. Officer Royer acknowledged that she did not observe any drug
paraphernalia in the vehicle or on Appellant’s person. Id. at 27. She also
acknowledged that, even if the paramedics had not taken him to the hospital
for treatment on a doctor’s advice, Appellant still would not have been free to
leave on account of investigative detention. Id. at 28, 30, 41-42. Finally,
Officer Royer conceded that she was not a drug recognition expert. Id. at 49.
The Commonwealth next presented the testimony of Officer Shaffer,
who testified that he was employed as a patrolman for over sixteen and one-
half years. Id. at 55-56. He testified that he became a drug recognition
expert (“DRE”) in 2014. Id. at 56. Officer Shaffer recalled that, on January
31, 2018, he received a telephone call from Officer Royer concerning a
potentially impaired driver. Id. He testified:
[Officer Royer] contacted me on the phone saying that she had a
single vehicle crash that had gone off of the roadway in the –
somewhere on Mount Nittany Expressway. She stated it was a
fairly straight road. There were no adverse weather conditions.
She said that the individual involved in the crash, the driver, had
to be taken to the hospital for treatment, and she asked if I was
capable of doing a DRE under those circumstances. I’m not. I’ve
attempted to examine people at the hospital for a drug eval, and
it doesn’t work well. I can’t do a lot of the field tests that I
otherwise would do, and I’m limited in my ability to assess people,
especially if they’re undergoing treatment. Our greater concern
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as part of the DRE evaluation process is to make sure the people
are medically okay.
But she then outlined some of the other aspects of the crash, some
of the information she had received from the onsite EMS about the
individual’s blood pressure, his pulse being elevated. She noticed
that he had bloodshot eyes, as I recall, stated there were folks at
the hospital who had advised her that he had a history of drug
use, and she wondered, asking me as not just a drug recognition
expert but also as an SFST instructor, if she had enough to
proceed with a blood draw. I stated that under those
circumstances I would proceed with a blood draw and request
blood using the DL-26.
Id. at 56-57 (sic). Officer Shaffer relayed that, based on his training and
experience and the information furnished by Officer Royer, he opined that
Appellant was under the influence of drugs and advised Officer Royer to
request general toxicology and the expanded pharmaceuticals tests. Id. at
57-58. Officer Shaffer ruled out alcohol because “there was no presence of
alcohol that [he] was aware of.” Id. at 58.
On cross-examination, Officer Shaffer clarified that he merely “advised”
Officer Royer that, in his opinion, she had sufficient grounds to ask Appellant
to submit to a blood draw. Id. at 62. He acknowledged that he did not
perform a DRE because that was outside the scope of Officer Royer’s phone
call. Id. at 63.
In response, Appellant called to the stand Matthew Burnheimer, a
paramedic at Centre LifeLink in State College, who testified about the January
31, 2018 motor vehicle incident involving Appellant that occurred on Route
322 West. N.T. Suppression, 12/20/18, at 3-6. Mr. Burnheimer testified that,
when he arrived at the scene, he observed that “it looked like [Appellant’s]
vehicle was about a hundred yards off of 322 and then came to stop upon a
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fence post.” Id. at 6. According Mr. Burnheimer, Appellant “was inside the
vehicle. He was awake and talking. So we could tell he was breathing and
okay at that point.” Id. Mr. Burnheimer recalled that although Appellant
“wasn’t bleeding profusely from anywhere,” he was bleeding from his nose.
Id. Mr. Burnheimer testified that, as a result of the bleeding, there was a
concern “about a head injury.” Id. at 7.
Mr. Burnheimer testified that Appellant’s pupils were “equal and
reactive,” and thus presented no concern. Id. He further testified that the
bridge of Appellant’s nose “looked off” and that the nose appeared to be
swollen. Id. at 7-8. He recalled that Appellant was alert to the extent he
“knows who he is. He knew where he was, and he was understanding about
the time of day.” Id. at 9. Appellant did not have slurred speech. Id. He
was speaking “normally.” Id. As a result, Mr. Burnheimer ruled out the
possibility of a stroke. Id.
Furthermore, Mr. Burnheimer recalled that Appellant’s motor sensory
skills were normal. Id. at 9-10. Appellant scored a 15 out of 15 on the
“Glasgow Coma Score,” which gauged his level of consciousness, i.e., his
ability to react, his ability to speak, and his response level to pain. Id. at 10-
11. Finally, Mr. Burnheimer testified that he wrote “unknown” in his report
with respect to suspecting drugs or alcohol. Id. at 12. He explained that he
“wasn’t able to say affirmative that yes or no. We weren’t sure.” Id. (sic).
On cross-examination, he noted that his purpose at the accident scene
was “[t]o care for the patient and other patients. We’re there for the patients.”
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Id. at 13. He acknowledged that, upon arrival, his first thoughts were to rule
out major injuries, such as “trauma to the head, broken bones, things of that
nature,” to the patient. Id. He further acknowledged that it “was a secondary
concern” to look for possible involvement of drugs or alcohol. Id. He
explained that he did not carry any equipment to test on the spot whether a
patient had drugs or alcohol in his or her system. Id. at 14. Mr. Burnheimer
conceded that he did not “dig too much into” whether Appellant was under the
influence of drugs or alcohol. Id.
He also conceded that Appellant did not want to go to the hospital. Id.
According to Mr. Burnheimer, given Appellant’s adamancy, he called a doctor
at the hospital to discuss Appellant’s case. Id. at 15. “I spoke to the doctor
and said that [Appellant] didn’t remember the incident, and he did have the
injuries to the face so we thought maybe a head injury, and the doctor at the
hospital said the patient may not refuse and has to go to the hospital.” Id.
In other words, “it was doctor’s orders to come to the hospital, and that’s what
led to him being there[.]” Id.
On March 5, 2019, following hearing and subsequent briefing by the
parties, the trial court issued an order denying Appellant’s omnibus motion.
On April 22, 2019, the case proceeded to a stipulated bench trial at the
conclusion of which the trial court found Appellant guilty of three separate
counts of DUI of a controlled substance, disregarding a traffic lane, careless
driving, and improperly exiting a limited access highway. On June 14, 2019,
the trial court sentenced Appellant to, inter alia, an aggregate term of 72
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hours to 6 months’ imprisonment. Appellant timely appealed. The trial court
directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained
of on appeal. Appellant complied. In response, the trial court issued a
Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant presents three issues for our review. For ease of
disposition, we combine his first two issues as they relate to the trial court’s
denial of his suppression motion. Specifically, Appellant argues that he was
subjected to an unlawful detention when he was taken to the hospital against
his wishes and that his consent to the blood draw was involuntary due to
coercion. Separately, he also argues that the trial court erred in concluding
that his conviction for careless driving was supported by sufficient evidence.
We first address Appellant’s claim that the trial court erred in denying
his suppression motion. In reviewing appeals from an order denying
suppression, our standard of review is limited to determining
whether [the trial court’s] factual findings are supported by the
record and whether [its] legal conclusions drawn from those facts
are correct. When reviewing the rulings of a [trial] court, the
appellate court considers 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.
When the record supports the findings of the [trial] court, we are
bound by those facts and may reverse only if the legal conclusions
drawn therefrom are in error.
Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our
scope of review is limited to the evidence presented at the suppression
hearing. In re interests of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).
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Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution protect the people from
unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d 298,
302 (Pa. 2014) (citation omitted). The Lyles Court explained:
Jurisprudence arising under both charters has led to the
development of three categories of interactions between citizens
and police. The first, a “mere encounter,” does not require any
level of suspicion or carry any official compulsion to stop and
respond. The second, an “investigatory detention,” permits the
temporary detention of an individual if supported by reasonable
suspicion. The third is an arrest or custodial detention, which
must be supported by probable cause.
In evaluating the level of interaction, courts conduct an
objective examination of the totality of the surrounding
circumstances. . . . The totality-of-the-circumstances test is
ultimately centered on whether the suspect has in some way been
restrained by physical force or show of coercive authority. Under
this test, no single factor controls the ultimate conclusion as to
whether a seizure occurred—to guide the inquiry, the United
States Supreme Court and [our Supreme] Court have employed
an objective test entailing a determination of whether a
reasonable person would have felt free to leave or otherwise
terminate the encounter. What constitutes a restraint on liberty
prompting a person to conclude that he is not free to leave will
vary, not only with the particular police conduct at issue, but also
with the setting in which the conduct occurs.
[Our Supreme] Court and the United States Supreme Court
have repeatedly held a seizure does not occur where officers
merely approach a person in public and question the individual or
request to see identification. Officers may request identification
or question an individual so long as the officers do not convey a
message that compliance with their requests is required.
Although police may request a person’s identification, such
individual still maintains the right to ignore the police and go about
his business.
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Id. at 302-03 (internal citations and quotation marks omitted). “We adhere
to the view that a person is ‘seized’ only when, by means of physical force or
a show of authority, his freedom of movement is restrained. Only when such
restraint is imposed is there any foundation whatever for invoking
constitutional safeguards.” United States v. Mendenhall, 446 U.S. 544,
553 (1980).
Instantly, Appellant argues only that Officer Royer lacked reasonable
suspicion to detain him for investigative purposes. It is settled that reasonable
suspicion necessary for investigative detentions
is a less demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with
information that is different in quantity or content than that
required to establish probable cause, but also in the sense that
reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations
omitted). “In order to justify an investigative detention, the police must have
reasonable suspicion that criminal activity is afoot. Reasonable suspicion must
be based on specific and articulable facts, and it must be assessed based upon
the totality of the circumstances viewed through the eyes of a trained police
officer.” Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super. 2009)
(citation omitted), appeal denied, 990 A.2d 730 (Pa. 2010). Thus, “[t]he
determination of whether an officer had reasonable suspicion that criminality
was afoot so as to justify an investigatory detention is an objective one, which
must be considered in light of the totality of the circumstances.”
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Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011) (emphasis added).
In assessing the totality of the circumstances, a court must give weight to
the inferences that a police officer may draw through training and
experience. Id. at 95. Reasonable suspicion does not require that the activity
in question must be unquestionably criminal before an officer may investigate
further. Davis, 102 A.3d at 1000 (citations omitted). “Rather, the test is
what it purports to be—it requires a suspicion of criminal conduct that is
reasonable based upon facts of the matter.” Id. (citation and emphasis
omitted).
Here, based upon the totality of the circumstances of this case, as
detailed above,2 it is beyond peradventure that Officer Royer had reasonable
suspicion to detain Appellant for DUI.3 As the trial court found:
Officer Royer responded to a report of a one vehicle crash on
Mount Nittany Expressway. The officer testified there were no
adverse weather or road conditions on that day to cause
[Appellant] to go off the road. [Appellant] had no recollection of
the accident. He did not remember leaving the dentist’s office or
driving from Lewistown to Boalsburg. Officer Royer also testified
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2 To the extent Appellant invites us to accept his proffered version of the facts
or to credit his testimony, we decline the invitation. See Commonwealth v.
Fudge, 213 A.3d 321, 326 (Pa. Super. 2019) (citation omitted) (noting that
we will not disturb a suppression court’s weight and credibility absent a clear
and manifest error), appeal denied, No. 422 MAL 2019, 2019 WL 7207309
(Pa. filed December 27, 2019); see also Commonwealth v. McCoy, 154
A.3d 813, 816 (Pa. Super. 2017) (“[I]t is within the lower court’s province to
pass on the credibility of witnesses and determine the weight to be given to
their testimony.”).
3 The Commonwealth seemingly concedes that Officer Royer enforced the
doctor’s directive for Appellant to go to the hospital and that Appellant was
under investigative detention from the time he was in the ambulance following
the crash.
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to observing [Appellant’s] bloodshot eyes, flushed face, low and
slow speech, and elevated heart rate and blood pressure. As an
officer experienced in recognizing symptoms of a person driving
under the influence, Officer Royer deducted that [Appellant] may
have been impaired. At this point, [Appellant] was under an
investigative detention while in the ambulance transporting him
to the hospital.
Officer Royer’s suspicions [Appellant] may have been driving while
impaired were further heightened after she was approached by
two hospital nurses who informed her of [Appellant’s] history of
drug use. Armed with this information and her observations from
earlier in the day, Officer Royer contacted her more experienced
colleagues to gain advice on moving forward with the
investigation. That is when her colleagues informed her that she
should obtain a blood draw from [Appellant].
While Officer Royer asked [Appellant] to give a blood sample only
after seeking advice from her colleagues, at all times prior to
receiving that advice, Officer Royer had the requisite reasonable
suspicion gleaned from her earlier observations, training, and
experiences to lawfully detain [Appellant]. Thus, the [c]ourt finds
that [Appellant] was not subjected to an unlawful investigative
detention.
Trial Court Opinion, 3/5/19, at 5-6. Thus, Officer Royer relied on her training,
experience, observations of Appellant and the circumstances surrounding the
accident to reasonably conclude that Appellant was driving under the influence
to justify an investigatory detention. Accordingly, the court did not err in
denying Appellant’s motion to suppress.
We now address Appellant’s argument that his consent to the blood
draw was involuntary because it was obtained through coercion.
In Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), the Supreme
Court addressed the constitutionality of warrantless searches of breath and
blood under the Fourth Amendment, specifically with regard to the search-
incident-to-arrest and consent exceptions to the warrant requirement. Id. at
2184. The Court held, inter alia, that “the Fourth Amendment permits
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warrantless breath tests incident to arrests for drunk driving[,]” but
“reach[ed] a different conclusion with respect to blood tests.” Id. Because
obtaining a blood sample is significantly more intrusive than a breath test, the
Court determined that a blood test may not be administered as a search
incident to arrest. Id. at 2185.
The Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution protect
citizens from unreasonable searches and seizures.”
Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super.
2012). “A search conducted without a warrant is deemed to be
unreasonable and therefore constitutionally impermissible, unless
an established exception applies.” Commonwealth v. Strickler,
757 A.2d 884, 888 (Pa. 2000). “Exceptions to the warrant
requirement include the consent exception, the plain view
exception, the inventory search exception, the exigent
circumstances exception, the automobile exception . . ., the stop
and frisk exception, and the search incident to arrest exception.”
Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 n.3 (Pa.
Super. 2013). The “administration of a blood test . . . performed
by an agent of, or at the direction of the government” constitutes
a search under both the United States and Pennsylvania
Constitutions. Commonwealth v. Kohl, 615 A.2d 308, 315 (Pa.
1992); Schmerber[, 384 U.S. at 770].
Commonwealth v. Evans, 153 A.3d 323, 327-28 (Pa. Super. 2016)
(brackets omitted) (emphasis added). “One such exception is consent,
voluntarily given.” Strickler, 757 A.2d 888 (citation omitted). Under the
Fourth Amendment, where an encounter between law enforcement is lawful,
voluntariness of consent to a search becomes the exclusive focus. Id. In
Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013), our Supreme Court
explained:
In determining the validity of a given consent, the Commonwealth
bears the burden of establishing that a consent is the product of
an essentially free and unconstrained choice—not the result of
duress or coercion, express or implied, or a will overborne—under
the totality of the circumstances. The standard for measuring the
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scope of a person’s consent is based on an objective evaluation of
what a reasonable person would have understood by the exchange
between the officer and the person who gave the consent. Such
evaluation includes an objective examination of the maturity,
sophistication and mental or emotional state of the defendant.
Gauging the scope of a defendant’s consent is an inherent and
necessary part of the process of determining, on the totality of the
circumstances presented, whether the consent is objectively valid,
or instead the product of coercion, deceit, or misrepresentation.
Smith, 77 A.3d at 583 (citations, quotation marks and ellipses omitted). In
explicating voluntariness under similar circumstances, we have stated:
While there is no hard and fast list of factors evincing
voluntariness, some considerations include: 1) the defendant’s
custodial status; 2) the use of duress or coercive tactics by law
enforcement personnel; 3) the defendant’s knowledge of his right
to refuse to consent; 4) the defendant’s education and
intelligence; 5) the defendant’s belief that no incriminating
evidence will be found; and 6) the extent and level of the
defendant’s cooperation with the law enforcement personnel.
Commonwealth v. Geary, 209 A.3d 439, 443 (Pa. Super. 2019) (citation
omitted).
It is well settled that in DUI cases, a police officer requesting that a
motorist submit to a warrantless blood draw “ha[s] no obligation to enlighten
[the motorist] as to the full details of federal constitutional law; [the police
officer] only need[] tell [the motorist] the current, legal consequences of
refusing to consent to the blood-draw.” Commonwealth v. Venable, 200
A.3d 490, 498 (Pa. Super. 2018) (citation omitted; bracketed information
amended; emphasis added); see also Commonwealth v. Myers, 164 A.3d
1162, 1171 (Pa. 2017).
Here, Appellant claims that his consent was involuntary because it was
preceded by his unlawful detention and thus, obtained through coercion. As
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explained above, his detention was not unlawful as Officer Royer had
reasonable suspicion. Moreover, the trial court explained:
[Appellant] was not under any physical restraints. The Officer
read the DL-26 form to [Appellant] and testified at the hearing
that [Appellant] seemed alert and talkative. For good measure,
Officer Royer also read the hospital’s consent form to [Appellant].
[Appellant] signed form DL-26, thereby giving his consent to the
blood draw.
....
Officer Royer testified at the suppression hearing that she did not
yell or threaten [Appellant] to obtain a blood sample. [Appellant]
did not present any evidence or testimony to refute Officer Royer’s
claim. Thus, there is no evidence of coercion. [Appellant] was
not physically harmed, nor subjected to unusual pressure.
Nothing in the contents of the DL-26 deprived [Appellant] of his
ability to make a free decision regarding whether to sign the DL-
26 form. Th[e c]ourt finds [Appellant’s consent was not the
product of duress or coercion, and, under the totality of the
circumstances, [Appellant] voluntarily signed DL-26 form and
consented to the warrantless blood draw.
Trial Court Opinion, 3/5/19, at 6-7. Accordingly, based upon the totality of
the circumstances, Appellant does not obtain relief. See Commonwealth v.
Robertson, 186 A.3d 440 (Pa. Super. 2018) (finding consent voluntary where
police did not use coercive tactics, defendant was informed of her right to
refuse, and subsequently cooperated with the blood draw), appeal denied,
195 A.3d 852 (Pa. 2018).
We finally address Appellant’s argument that the evidence presented at
the stipulated non-jury trial was insufficient to establish that he committed
the offense of careless driving.
A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
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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 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).
Section 3714(a) of the Vehicle Code provides that “[a]ny person who
drives a vehicle in careless disregard for the safety of persons or property is
guilty of careless driving, a summary offense.” 75 Pa.C.S.A. § 3714(a). This
court has defined the mens rea for careless driving, “careless disregard,” as
“less than willful or wanton conduct but more than ordinary negligence.” See
Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa. Super. 2010).
Here, based upon our review of the evidence, as detailed above and
viewed in a light most favorable to the Commonwealth as the verdict winner,
we agree with the trial court’s conclusion that the Commonwealth proved
beyond a reasonable doubt that Appellant committed careless driving. The
trial court found Appellant guilty of careless driving on the following stipulated
facts:
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1. Thomas Bland Cunningham was driving in the right lane on 322-
W just west of the Old Fort exit.
2. Mr. Cunningham saw a vehicle behind him in the right lane start
to swerve. The vehicle then started to swerve back and forth
across the entire roadway, before swerving off the road and into
the grassy area and crashed into a fence.
3. Mr. Cunningham pulled over onto the side of the road and called
911.
4. Mr. Cunningham would not be able to testify to the cause of
[Appellant’s] accident.
....
5. Officer Royer would testify consistently with her testimony at the
Omnibus hearing held on September 6, 2018. . . .
6. Officer Royer read the DL-26 Implied Consent Form to [Appellant],
and [Appellant] signed said form. . . .
7. Additionally, Officer Royer would testify that on March 6, 2018,
Officer Royer called [Appellant] to advise him he would be charged
with DUI. [Appellant] responded, “I knew you were going to
charge me, I’m not retarded.”
....
8. Matthew Burnheimer would testify consistent with his testimony
at the Continued Omnibus hearing held on December 20, 2018. .
..
....
9. [William Anderson would testify that he] is employed as a Lab
Tech at the Mount Nittany Medical Center.
10. He is qualified by his education and experience to withdraw
blood from an individual for testing purposes; specifically, the
testing of one’s blood to determine its alcohol concentration.
11. At 1401hours—or 2:01 P.M.—on January 31, 2018, a
sample of blood was legally withdrawn from the arm of [Appellant]
by Mr. [Anderson].
12. The chain of custody of the evidence was protected at all
times.
....
13. [Forensic Toxicologist] Sherri L Kacinko[, Ph.D., F-ABFT] is
employed by NMS Labs in Willow Grove, Pennsylvania.
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14. [She] is an expert in the field of blood analysis.
....
15. [Ms. Kacinko] tested [Appellant’s] blood using Gas
Chromatography/Mass Spectrometry and High Performance Liquid
Chromatography/Tandem Mass Spectrometry.
16. [She] analyzed [his] blood and determined [his] blood
contained: Benzoylecgonine 820 ng/mL, Tramadol 840 ng/mL, O-
Desmethyltramadol 48 ng/mL, Buprenorphine 0.90 ng/mL, and
Norbuprenorphine 1.4 ng/mL. . . .
17. The proper medical and legal procedures were followed in
obtaining and testing the blood sample.
18. The chain of custody of the evidence was protected at all
times.
Stipulation, 4/22/19, at 1-3 (paragraphs renumbered). The trial court
explained:
Mr. Cunningham witnessed a car swerving back and forth on the
road, and then crashing into a fence. Mr. Cunningham’s stipulated
testimony does not directly identity [Appellant] as the driver of
the vehicle, but his testimony in conjunction with Officer Royer’s
testimony that she witnessed [Appellant’s] SUV resting against a
fence on the side of the road led the [c]ourt to infer Mr.
Cunningham’s stipulated testimony referred to the actions of
[Appellant]. There were no adverse conditions or other imposing
vehicles which would have caused [Appellant] to swerve so
violently on the road and crash into a fence. The presence of
controlled substances in [his] blood along with the aforementioned
evidence proves beyond a reasonable doubt [Appellant] was
driving with a careless disregard for the safety of persons and
property.
Trial Court Opinion, 8/29/19, at 2-3. Therefore, based upon the foregoing
evidence and viewed in a light most favorable to the Commonwealth, we agree
with the trial court that the Commonwealth proved beyond a reasonable doubt
that Appellant committed careless driving.
In sum, we conclude that the trial court did not err in denying Appellant’s
motion to suppress based on his contention that his detention was unlawful
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and that his consent to the blood draw was involuntary due to coercion. We
also conclude that sufficient evidence supported Appellant’s conviction for
careless driving. We, therefore, affirm the trial court’s June 14, 2019
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/11/2020
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