Com. v. Rhodes, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TAWANA GEANI RHODES :
:
Appellant : No. 2250 EDA 2017
Appeal from the Judgment of Sentence June 5, 2017
In the Court of Common Pleas of Northampton County Criminal Division at
No(s): CP-48-CR-0003709-2016
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 27, 2018
Tawana Geani Rhodes appeals from the judgment of sentence of three
days to six months imprisonment for driving under the influence (“DUI”) of a
controlled substance (marijuana). After careful review, we affirm.
The pertinent facts underlying Appellant’s conviction are as follows. At
approximately 12:36 a.m. on August 25, 2016, Walnutport Police Officer
Antonio Tramonte observed Appellant’s vehicle traveling on Main Street with
a non-functioning passenger side rear light. Officer Tramonte stopped
Appellant’s vehicle. As he requested Appellant’s license and registration, the
officer detected the smell of burnt marijuana coming from the vehicle and
observed that Appellant had bloodshot, glassy eyes. Officer Tramonte asked
Appellant if there was anything he should be worried about, and Appellant
volunteered that she had smoked marijuana earlier that day. When
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Appellant exhibited signs of impairment on field sobriety tests, Officer
Tramonte arrested her and transported her to Palmerton Hospital.
At the hospital, Officer Tramonte asked Appellant to submit to a blood
draw. After informing Appellant of her rights in this regard, the officer read
from Pennsylvania Department of Transportation (“PennDOT”) Form DL-26B,
which explained that refusal to submit to blood testing would result in the
suspension of driving privileges. Appellant signed the form consenting to
the blood draw, which revealed positive levels of delta nine THC, consistent
with marijuana use.
Appellant was charged with DUI, a schedule I controlled substance
(marijuana); DUI, impairment; and no rear lights. On March 31, 2017,
Appellant filed an omnibus pretrial motion seeking to suppress the results of
the blood draw on several grounds. Following a hearing, the suppression
court denied Appellant’s motion.
A non-jury trial was held on June 5, 2017, and the court found
Appellant guilty of both DUI counts and driving without rear lights. 1
Following her sentencing, Appellant filed a timely notice of appeal. The trial
court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, she complied, and the trial court authored
its Rule 1925(a) opinion.
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1 For sentencing purposes, the trial court merged the DUI impairment
conviction with the DUI (marijuana).
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Appellant presents four issues that we have reordered for ease of
disposition:
I. Whether the evidence at trial was sufficient to find the
Defendant guilty.
II. Whether the Honorable Craig A. Dally, erred in not
granting Defendant’s motion to dismiss the charges
against her as the Commonwealth had no cause to stop
her vehicle when, at the suppression hearing testimony
showed that the Defendant’s vehicle did not have a faulty
rear light as claimed by the Officer?
III. Whether the Honorable Craig A. Dally, erred in not
suppressing the results of the draw of the Defendant’s
blood which was obtained after an illegal stop and without
a search warrant and when the Defendant was without the
benefit of the warning necessitated by 75 Pa.C.S. Section
1547(b)(2).
IV. The Learned Trial Judge, the Honorable Emil A. Giordano,
erred in not suppressing the results of the blood draw of
the Defendant which was obtained after an illegal stop and
without a search warrant and when the Defendant was
without the benefit of the warning necessitated by 75
Pa.C.S. Section 1547(b)(2).
Appellant’s brief at 5-6.
First, Appellant argues that the only evidence supporting her DUI
convictions was the warrantless blood draw. She contends that since her
consent to the blood test was not valid, the results should have been
suppressed. Without the results, she maintains that the evidence was
legally insufficient to sustain the DUI convictions. The Commonwealth
counters that Appellant waived her sufficiency claim by failing to provide the
required specificity in her Rule 1925(b) statement. See Commonwealth v.
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Garland, 63 A.3d 339, 344-45 (Pa.Super. 2013) (“In order to preserve a
challenge to the sufficiency of the evidence on appeal, an appellant’s Rule
1925(b) statement must state with specificity the element or elements upon
which the appellant alleges that the evidence was insufficient.”).
The trial court recognized from Appellant’s concise statement that she
was challenging the sufficiency of the evidence supporting her DUI
convictions. See Pa.R.A.P. 1925(a) Statement, 7/19/17, at 1. (concluding
that, “the record will speak for itself and demonstrate the Commonwealth
met its burden of proving beyond a reasonable doubt that the Defendant
operated a motor vehicle under the influence of a controlled substance.”).
We find it deducible from Appellant’s Rule 1925(b) statement, viewed in its
entirety, that her sufficiency challenge pertained to the DUI convictions, and
thus, we decline to find waiver.
Our standard of review when considering a challenge to 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 factfinder 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
that of 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
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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.
Commonwealth v. Sweitzer, 2017 Pa.Super.LEXIS 1078, at *6-7
(Pa.Super. 2017) (citations and quotation marks omitted). Furthermore, in
“evaluating the sufficiency of the evidence, we do not review a diminished
record.” Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa.Super. 2012)
(citations omitted).
Rather, the law is clear that we are required to consider all
evidence that was actually received, without consideration as to
the admissibility of that evidence or whether the trial court’s
evidentiary rulings were correct. Where improperly admitted
evidence has been considered by the trier-of-fact, its subsequent
deletion does not justify finding of insufficient evidence; the
remedy in such a case is the grant of a new trial.
Id.Appellant’s sufficiency argument is premised on this Court’s disregard
of the blood test results. Since we are compelled to consider all evidence
actually received when reviewing a sufficiency determination, even
improperly admitted evidence, her argument ignores our standard of review.
The blood test results alone were sufficient to support her DUI convictions.
Next, Appellant contends that the suppression court erred in finding
there was probable cause for the traffic stop. The Commonwealth asserts
waiver based upon Appellant’s failure to argue and cite authorities in her
brief in support of that position. Appellant’s discussion of this issue is
limited to the following: “[w]ith the permission of the Court, Defendant will
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not argue the point of Defendant’s Motion, probable cause to stop the
vehicle, and move directly onto the crux of the matter, that is, did the
Defendant knowingly and voluntarily consent to the blood draw.” Appellant’s
brief at 11.
This Court has held that, “it is an appellant’s duty to present
arguments that are sufficiently developed for our review. . . . The brief must
support the claims with pertinent discussion, with references to the record
and with citations to legal authorities.” Commonwealth v. Hardy, 918
A.2d 766, 771 (Pa.Super. 2007) (citations omitted). Since Appellant did not
provide any pertinent discussion, references to the record, or citations to
legal authorities regarding the legality of the stop, we find that Appellant
waived this claim. See Commonwealth v. Ramsden, 94 A.3d 1080, 1088-
89 (Pa.Super. 2014) (finding claims waived for failure to develop argument
and lack of supporting authority); see also Pa.R.A.P. 2119 (“The argument
shall be divided into as many parts as there are questions to be argued; and
shall have at the head of each part . . . the particular point treated therein,
followed by such discussion and citation of authorities as are deemed
pertinent.”).
Appellant’s third and fourth issues challenge the trial court’s denial of
her motion to suppress the blood draw on the ground that her consent was
invalid. In addressing a challenge to the denial of a suppression motion,
Our standard of review . . . is limited to determining whether the
factual findings are supported by the record and whether the
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legal conclusions drawn from those facts are correct. We are
bound by the suppression court’s factual findings so long as they
are supported by the record; our standard of review on
questions of law is de novo. Where, as here, the defendant is
appealing the ruling of the suppression court, we may consider
only the evidence of the Commonwealth and so much of the
evidence for the defense as remains uncontradicted. Our scope
of review of suppression rulings includes only the suppression
hearing record and excludes evidence elicited at trial.
Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017)
(citations omitted).
Appellant alleges that the trial court erred in refusing to suppress the
results of the blood test. The Commonwealth argues that Appellant’s failure
to include the transcript of the suppression hearing in the certified record is
fatal to her claims. We note, however, that Appellant sought and obtained
a court order for the transcript, and that it should have been included in the
record. Accordingly, we located it and made it part of the certified record.
Thus, we can meaningfully review the issue.
The following principles apply to the validity of a warrantless search:
A search conducted without a warrant is deemed to be
unreasonable and therefore constitutionally impermissible,
unless an established exception applies. Those exceptions
include voluntary consent. The central Fourth Amendment
inquiries in consent cases entail assessment of the constitutional
validity of the citizen/police encounter giving rise to the consent;
and, ultimately, the voluntariness of consent.
Commonwealth v. Smith, 2017 Pa.Super.LEXIS 1108, at *9 (Pa.Super.
December 28, 2017) (quoting Commonwealth v. Strickler, 757 A.2d 884,
888 (Pa. 2000)) (quotation marks omitted). Admittedly, no warrant was
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obtained for the blood test. At issue in the trial court was the validity of
Appellant’s consent to the blood draw.
Appellant cites Birchfield v. North Dakota, 136 S.Ct. 2160, 2185-86
(2016), for the proposition that a state cannot impose criminal penalties for
a blood test refusal. She then relies upon Commonwealth v. Evans, 153
A.3d 323 (Pa.Super. 2016), where we remanded for a hearing to determine
whether a partially inaccurate pre-Birchfield Form DL-26 threatening
enhanced criminal penalties for refusal to submit to a blood test was
coercive. She concedes, however, that Officer Tramonte used a revised
form that did not reference criminal penalties for a blood test refusal.
However, she contends that she was not informed of all the circumstances
in play when she consented to the blood draw. For instance, she was not
told of the increased penalties that she would incur if the blood draw
revealed marijuana in her system. Thus, she contends, her consent was
not voluntary.
The trial court found that Officer Tramonte read to Appellant from the
revised Form DL-26B that properly advised that she would be subject only to
the civil penalty of license suspension if she refused to submit to a blood
test. Thus, the warning did not offend Birchfield. The court noted further
that, after Birchfield, defendants no longer could face enhanced criminal
penalties under 75 Pa.C.S. § 3804(c) for refusing chemical testing. See
Commonwealth v. Giron, 155 A.3d 635 (Pa.Super. 2017). Furthermore,
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the court found no evidence that Appellant’s “consent was the product of
duress, coercion, or an overborne will.” Trial Court Opinion, 6/1/17, at
unnumbered 6. Moreover, the court rejected Appellant’s argument that
Birchfield required that she be apprised that she was subject to enhanced
penalties based on violations of 75 Pa.C.S. § 3802(a)(2), (b), (c), and
(d)(1)(i), if the blood draw showed a positive reading.
We find that Birchfield and Evans are not implicated herein as the
Form DL-26B that Officer Tramonte read to Appellant did not threaten
criminal penalties for refusal to consent to a blood test. The facts herein
mirror those in Smith, supra. Smith signed a DL-26 form acknowledging
that she was advised that a refusal could result in suspension of her driver’s
license, and which made no mention of criminal penalties. We found
Birchfield inapplicable on those facts since Smith was never advised that
she would be subject to enhanced criminal sanctions should she refuse blood
testing.
Appellant’s contention that her consent was involuntary because the
officer did not advise her that she was subject to increased criminal penalties
if the blood test revealed the presence of prohibited controlled substances in
her system is also without merit. In Commonwealth v. Smith, 77 A.3d
562, 564 (Pa. 2013), the Supreme Court of Pennsylvania held that a police
officer was not required to “inform an individual that a positive result in a
blood test may have criminal repercussions . . . ” and rejected the notion
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that the failure to do so “renders any consent to the blood test invalid[.]”
The Court found therein that the appellee understood the purpose of the
test, was not injured in any way, was informed of the right to refuse the
test, and willingly participated in the blood draw. Id. at 573. Looking at the
totality of the circumstances, the Smith Court reasoned that, “a reasonable
person’s consent to [the] blood draw would have contemplated the
potentiality of the results being used for criminal, investigative, or
prosecutorial purposes.” Id.
Herein, Officer Tramonte testified that Appellant was responsive when
he asked her to produce her license and registration. She also complied
with his request that she submit to a field sobriety test, which indicated that
she was capable of understanding at the time of the stop.2 Appellant was
given proper information regarding civil penalties for the refusal to submit to
a blood test. The trial court found that, on these facts, she voluntarily
signed the form consenting to the test. We find that the record supports the
trial court’s findings, and thus, we affirm the court’s order refusing to
suppress the blood test results.
Judgment of sentence affirmed.
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2 Appellant does not argue that she was incapable of understanding and
consenting at the time.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/18
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