Commonwealth v. Haines ( 2017 )


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  • J-A05033-17
    
    2017 Pa. Super. 205
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    DOUGLAS NELSON HAINES
    Appellant                 No. 1316 WDA 2016
    Appeal from the Judgment of Sentence August 26, 2016
    In the Court of Common Pleas of Mercer County
    Criminal Division at No(s): CP-43-CR-0001731-2015
    BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.
    OPINION BY MOULTON, J.:                                 FILED JUNE 30, 2017
    Douglas Nelson Haines appeals from the August 26, 2016 judgment of
    sentence entered in the Mercer County Court of Common Pleas following his
    bench trial conviction for driving under the influence (“DUI”) – highest rate
    of alcohol.1 We affirm.
    The trial court, in disposing of Haines’ motion to suppress, set forth
    the following factual history:
    2.    On October 3, 2015, [Pennsylvania State Police]
    Trooper [James] Mason was working the midnight shift. A
    second trooper, Yurna,[2] was in the vehicle with him.
    3.    Sometime around 4:00 a.m., Trooper Mason
    received a dispatch of a possible accident on North Cottage
    Road in Jackson Township, Mercer County, Pennsylvania.
    ____________________________________________
    1
    75 Pa.C.S. § 3802(c).
    2
    Trooper Yurna’s first name does not appear in the record.
    J-A05033-17
    The caller did not see the accident, nor could the caller
    identify anyone in the accident. The caller simply reported
    that he heard what sounded like an accident.
    4.     Within three to four minutes Trooper Mason
    arrived at the scene. At some point a second marked
    cruiser also arrived at the scene.
    5.    Upon arrival, the troopers discovered a 2012
    black Jeep Grand Cherokee that had gone off the road and
    had skidded into a small wooded area causing moderate
    damage to the vehicle. Various windows in the vehicle
    were broken but still intact such that a person could not
    have been thrown through the window, and several
    airbags had deployed.
    6.   The troopers approached the vehicle to determine
    if someone was hurt or worse. They found no one in the
    Jeep or in the immediate area.
    7.    When the troopers investigated the Jeep itself,
    they saw no signs of blood and could make no
    determination as to whether or not someone was injured in
    that accident.
    8.    Trooper Mason ran the Jeep’s registration plate,
    and it came back to . . . Douglas Nelson Haines, of . . .
    Grove City, Pennsylvania. Trooper Mason also obtained
    Haines’ driver’s license information, which included his
    physical description and a driver’s license photograph.
    9.    The area of the accident was a dark, rural area
    with no street lights. Rain was moderate to heavy. The
    blacktop road was wet. There was very little traffic on this
    secondary road at the time of Trooper Mason’s
    investigation, although it is possible that the local paper
    deliveryman had passed.
    10. At the scene, Trooper Mason called for a tow
    truck. The troopers in the second car drove around the
    surrounding area looking for pedestrians, but no one was
    located.
    11. Trooper Mason waited in his car for a tow truck,
    sitting in the south bound lane facing north toward the
    accident, with headlights and emergency light[s] on.
    -2-
    J-A05033-17
    12. Approximately ten minutes after Trooper Mason
    arrived at the scene while he was parked in the driveway
    awaiting the tow truck, he saw in his rearview mirror a
    vehicle approach. This vehicle was travelling north in the
    northbound lane. Trooper Mason observed the vehicle
    stop about a half a mile behind (to the south) of where the
    Trooper’s vehicle was located. The vehicle stopped on the
    roadway and remained stopped for approximately 10 to 15
    seconds.
    13. This vehicle then continued driving in a northerly
    direction and ultimately passed Trooper Mason. Because it
    was dark and raining, the Trooper could not determine
    who or how many people were in the vehicle. The car was
    travelling at an appropriate speed and as it travelled it was
    not violating the Pennsylvania Motor Vehicle Code.
    14. As this vehicle passed Trooper Mason’s position,
    he observed the car’s registration plate and ran the same.
    The registration came back to a Samuel Haines, showing
    the owner’s address as . . . Latonka Drive in Mercer,
    Pennsylvania. The last name “Haines” was spelled the
    same way as the last name on the owner of the crashed
    vehicle.   It was Trooper Mason’s impression that the
    second vehicle had pulled up possibly to pick up the
    operator of the first vehicle.
    15. Once Trooper Mason discovered the name of the
    registered owner of the vehicle, he effectuated a stop of
    that vehicle, which took place approximately one half mile
    north of the accident scene.        The vehicle stopped
    appropriately.
    16. Trooper Mason observed a female driving the
    vehicle and an individual in the front passenger seat who
    he identified as Haines based upon the driver’s license
    picture obtained from running the crashed vehicle’s plates.
    17. North Cottage Road provides access to the Lake
    Latonka area.
    18. Trooper Mason believed he had reasonable
    suspicion to stop the second car given its proximity to the
    accident scene, the fact that the car had stopped on the
    roadway for 10 to 15 seconds, and because the registered
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    owner’s last name was the same last name as that of
    [Haines].
    19. The distance between Grove City and Mercer is
    approximately nine miles. The distance between Mercer
    and the Pennsylvania State Police barracks is an additional
    five miles.     Grove City and Mercer are two distinct
    municipalities.
    20. There was no testimony as to the identity of the
    female driver of the car in which [Haines] was a
    passenger, that the female driver was authorized to drive
    this car, or that [Haines] had a possessory interest in the
    car.
    21. Trooper Mason detected an odor of alcohol
    emanating from the vehicle and asked Haines to exit.
    Haines lost his balance on the roadway and smelled of
    alcohol, so Trooper Mason effectuated a field sobriety test
    which Haines failed.
    22. Trooper Mason arrested Haines for D.U.I. and
    read him Implied Consent, O’Connell[3] Warnings, and
    Mirandized him. Mr. Haines ultimately did admit to being
    the operator of the vehicle. He said he swerved to miss a
    deer, and that’s how he lost control.
    23. At 5:15 a.m., Haines was transported to Grove
    City Hospital where lab technician Lana Lewis withdrew
    Haines’ blood sample. The sample was sent to the Erie
    Regional Laboratory, which determined that Haines had a
    blood alcohol content [(“BAC”)] of .244%.
    ...
    On October 23, 2015, Haines was charged with D.U.I.
    General impairment (75 Pa.C.S. § 3802(a)(1)) and D.U.I.
    Highest rate of alcohol (75 Pa.C.S. § 3802(c)). On March
    23rd, 2016, Haines filed an omnibus pretrial motion which
    challenged the constitutionality of the stop and search
    ____________________________________________
    3
    Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.
    O’Connell, 
    555 A.2d 873
    (Pa. 1989).
    -4-
    J-A05033-17
    conducted by Trooper Mason, and requested the
    suppression of all evidence obtained after the traffic stop.
    Trial Ct. Suppression Adj., 6/9/16, at 1-5. On May 4, 2016, the trial court
    held a hearing on the motion to suppress. On June 9, 2016, the trial court
    denied the motion to suppress.            On June 24, 2016, after a bench trial,
    Haines was convicted of DUI – highest rate of alcohol; he was acquitted of
    DUI – general impairment.
    On August 3, 2016, Haines filed a motion in arrest of judgment based
    on the United States Supreme Court’s decision in Birchfield v. North
    Dakota, 
    136 S. Ct. 2160
    (2016).                 Haines claimed that because the
    Birchfield Court “held that a warrant [is] required to obtain a blood sample
    in a [DUI] prosecution,” and “[Haines’] blood sample [was] obtained . . .
    without a warrant[,] . . . no charges remain viable against [Haines], and
    judgment should be arrested.”4          Mot. in Arrest of Judg., 8/3/16, ¶ 4-5, 7.
    On August 4, 2016, the trial court denied Haines’ motion.
    On August 26, 2016, the trial court sentenced Haines to incarceration
    of 90 days to 18 months, followed by six months’ probation. In its order,
    the trial court permitted Haines, after serving time in the Mercer County Jail,
    to serve the remaining 80 days of his minimum sentence on electronic house
    arrest and made Haines eligible for work release during his incarceration or
    ____________________________________________
    4
    Haines also asserted that “[t]he policy of the District Attorney of
    Mercer County in the wake of the Birchfield case is to withdraw any DUI
    charges except under [75 Pa.C.S.] § [3802](a), [g]eneral [i]mpairment, in
    which [Haines] . . . was acquitted.” Mot. in Arrest of Judg., 8/3/16, ¶ 6.
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    J-A05033-17
    house arrest. Further, the trial court granted Haines automatic parole at the
    conclusion of his minimum sentence if “he has obeyed the rules and
    regulations of the Mercer County Jail and the house arrest program[.]”5
    Sent. Order, 8/26/16, at 2. On September 1, 2016, Haines timely filed his
    notice of appeal.6
    Haines raises two issues on appeal:
    1. Was the traffic stop and seizure of the Samuel
    Haines     vehicle      based upon “coincidence”
    constitutionally justified?
    2. Did the Sentencing Court err in refusing to Arrest
    Judgment of the BAC count, based upon the
    Birchfield case?
    Haines’ Br. at 6 (suggested answers omitted).
    I.        Validity of Stop
    First, Haines argues that the stop of the second vehicle, registered to
    Samuel Haines, was unconstitutional.             In reviewing the denial of a
    suppression motion, we must determine
    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
    ____________________________________________
    5
    On August 31, 2016, the trial court amended its sentencing order to
    correct a clerical error, modifying the grade of Haines’ conviction from “UM”
    to “M-1.” Am. Sent. Order, 8/31/16.
    6
    Haines is on bond pending appeal. See Order, 8/26/16.
    -6-
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    uncontradicted when read in the context of the record as a
    whole. Where the suppression court’s factual findings are
    supported by the record, we are bound by these findings
    and may reverse only if the court’s legal conclusions are
    erroneous.       Where, as here, 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 an 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 courts
    below are subject to our plenary review.
    Commonwealth v. Jones, 
    988 A.2d 649
    , 654 (Pa. 2010) (internal
    quotations and citations omitted). In reviewing the denial of a suppression
    motion, we may only consider evidence presented at the suppression
    hearing. In re L.J., 
    79 A.3d 1073
    , 1085-87 (Pa. 2013).
    A. Level of Justification Required
    In assessing Haines’ motion to suppress, we first must determine what
    level of legal justification was necessary to support the stop in question.
    Haines, citing Commonwealth v. Ibrahim, 
    127 A.3d 819
    , 823 (Pa.Super.
    2015), app. denied, 
    138 A.3d 3
    (Pa. 2016), argues that Trooper Mason
    needed probable cause to justify the stop. We disagree.
    In Pennsylvania, some traffic stops require only reasonable suspicion
    while others require probable cause.    Section 6308(b) of the Vehicle Code
    sets forth the general rule:
    Whenever a police officer is engaged in a systematic
    program of checking vehicles or drivers or has reasonable
    suspicion that a violation of this title is occurring or has
    occurred, he may stop a vehicle, upon request or signal,
    for the purpose of checking the vehicle's registration, proof
    of financial responsibility, vehicle identification number or
    engine number or the driver's license, or to secure such
    -7-
    J-A05033-17
    other information as the officer may reasonably
    believe to be necessary to enforce the provisions of
    this title.
    75 Pa.C.S. § 6308(b) (emphasis added).           As we explained in Ibrahim,
    however, section 6308(b) “does not apply in all instances because . . . not
    all vehicle offenses require further investigation to determine whether a
    motorist has committed that offense.” 
    Ibrahim, 127 A.3d at 823
    . Rather,
    “some offenses, by their very nature, require a police officer to possess
    probable cause before he or she may conduct a traffic stop.”           
    Id. The required
    level of justification hinges on whether the stop “serve[s] a stated
    investigatory purpose.”       Commonwealth v. Feczko, 
    10 A.3d 1285
    , 1291
    (Pa.Super. 2010).        If so, then section 6308(b) controls and reasonable
    suspicion is sufficient.      As we said in Feczko, “the language of section
    6308(b) . . . is conceptually equivalent with the underlying purpose of a
    Terry[7] stop.” 
    Id. If, however,
    “the driver’s detention cannot serve an investigatory
    purpose relevant to the suspected violation[,] . . . [m]ere reasonable
    suspicion will not justify a vehicle stop[.]”      
    Id. As our
    Supreme Court
    explained,
    a vehicle stop based solely on offenses not “investigatable”
    cannot be justified by a mere reasonable suspicion,
    because the purposes of a Terry stop do not exist—
    maintaining the status quo while investigating is
    inapplicable where there is nothing further to investigate.
    ____________________________________________
    7
    Terry v. Ohio, 
    392 U.S. 1
    (1968).
    -8-
    J-A05033-17
    An officer must have probable cause              to   make   a
    constitutional vehicle stop for such offenses.
    Commonwealth v. Chase, 
    960 A.2d 108
    , 116 (Pa. 2008).
    We recently shed light on this distinction in Commonwealth v.
    Salter:
    [W]hen 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. Illustrative of these two standards are stops for
    speeding and DUI. If a vehicle is stopped for speeding,
    the officer must possess probable cause to stop the
    vehicle. This is so because when a vehicle is stopped,
    nothing more can be determined as to the speed of the
    vehicle when it was observed while traveling upon a
    highway.     On the other hand, if an officer possesses
    sufficient knowledge based upon behavior suggestive of
    DUI, the officer may stop the vehicle upon reasonable
    suspicion of a Vehicle Code violation, since a stop would
    provide the officer the needed opportunity to investigate
    further if the driver was operating under the influence of
    alcohol or a controlled substance.
    
    121 A.3d 987
    , 993 (Pa.Super. 2015).
    The situation before us does not fit neatly into the speeding/DUI
    dichotomy set out in Salter. The paradigm cases described by Salter and
    other authority, see, e.g., Commonwealth v. Sands 
    887 A.2d 261
    , 270
    (Pa.Super 2005) (comparing DUI to speeding and running a red light);
    
    Ibrahim, 127 A.3d at 824
    (comparing speeding to travelling the wrong way
    on one-way street), all involve stopping the vehicle that is suspected of
    -9-
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    being involved in the violation. Whether the offense is speeding, failing to
    stay in a single lane, see, e.g., Feczko, or driving the wrong way on a one-
    way street, see, e.g., Ibrahim, no evidence relevant to the offense is likely
    to be found in the offending vehicle. Accordingly, we have concluded that
    the rationale of Terry – permitting further investigation based on reasonable
    suspicion – cannot be used to justify the stop.8       Here, in contrast, we
    confront not only an offense that may require further investigation but also a
    stop that sought that information from a place other than the offending
    vehicle.
    Section 3746(a)(2) of the Vehicle Code provides:
    The driver of a vehicle involved in an accident shall
    immediately by the quickest means of communication give
    notice to the nearest office of a duly authorized police
    department if the accident involves:
    ...
    (2) damage to any vehicle involved to the extent that
    it cannot be driven under its own power in its
    ____________________________________________
    8
    In most instances, the probable cause requirement is easily met
    based on a police officer’s observation of the violation. See, e.g., 
    Ibrahim, 127 A.3d at 824
    (finding probable cause where officer observed appellant
    “drive his bicycle westbound on a road that requires all traffic to proceed in
    the eastbound direction”); 
    Feczko, 10 A.2d at 1292
    (finding probable cause
    where trooper’s dashboard camera video showed appellant’s vehicle touch
    white fog line and cross yellow center line); but cf. Commonwealth v.
    Whitmyer,, 
    668 A.2d 1113
    , 1117-18 (Pa. 1995) (finding no probable cause
    for speeding where officer paced vehicle for two-tenths of a mile when
    statute required speed pacing for at least three-tenths of a mile),
    superseded on other grounds as recognized by 
    Chase, 960 A.2d at 112
    .
    - 10 -
    J-A05033-17
    customary manner without further damage or hazard to
    the vehicle, other traffic elements, or the roadway, and
    therefore requires towing.
    75 Pa.C.S. § 3746(a)(2). Unlike the paradigmatic probable cause cases, this
    provision will often require investigation beyond mere observation of
    offending conduct. As this case illustrates, investigating officers may need
    to determine both whether the vehicle requires towing9 and, if so, whether
    its driver had notified or was in the process of notifying the police “by the
    quickest means of communication,” as required by law. Cf., e.g., 
    Feczko, 10 A.3d at 1292
    (holding that suspected violation of 75 Pa.C.S. § 3309(1),
    driving in single lane, where officer observed defendant’s vehicle touch white
    fog line and cross center yellow diving line, required probable cause);
    
    Salter, 121 A.3d at 993-94
    (holding that violation of 75 Pa.C.S. § 4303,
    lighting requirements, required probable cause for stop, as “[n]othing more
    needed to be determined by [the o]fficer . . . upon a stop to verify that the
    plate light was not operating”).
    While under some circumstances a violation of section 3746(a)(2)
    could be immediately apparent and require no further investigation, such will
    often not be the case. That the stop here was of a different vehicle does not
    change our analysis.       If Trooper Mason had reasonable suspicion that the
    Samuel Haines vehicle contained evidence relevant to the possible violation
    ____________________________________________
    9
    Trooper Mason testified that he was “not sure whether [the vehicle]
    would have been drivable or not.” N.T., 4/8/16, at 4.
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    J-A05033-17
    at issue, he was authorized to make the stop.10    Cf. Commonwealth v.
    Thompson, 
    93 A.3d 478
    , 482-83, 485 (Pa.Super. 2014) (concluding that
    police had reasonable suspicion to stop vehicle after observing passenger
    engage in possible narcotics transaction).
    B. Application of Reasonable Suspicion Standard
    Next, Haines argues that, even under the reasonable suspicion
    standard, Trooper Mason lacked adequate justification to stop the second
    vehicle. We disagree.
    Haines relies on Commonwealth v. Andersen, 
    753 A.2d 1289
    , 1294
    (Pa.Super. 2000), which held that an officer lacks reasonable suspicion to
    stop a motor vehicle when he knows only that the owner of the vehicle has
    a suspended license but does not know who is operating the vehicle.
    Haines also asserts that Trooper Mason had no evidence that Haines was
    related to Samuel Haines, the registered owner of the second vehicle, and
    highlights the trial court’s reference to the identity of surnames a
    “coincidence.”
    ____________________________________________
    10
    In the section of his brief arguing for a probable cause standard,
    Haines asserts, without elaboration, that “this offense is not a crime but
    rather a summary offense.” Haines Br. at 12. That section 3746 is a
    summary offense does not affect the level of suspicion required to stop a
    motor vehicle; rather, it is the nature of the possible violation that
    determines the required level of suspicion. See 
    Feczko, 10 A.3d at 1291
    ;
    
    Salter, 121 A.3d at 993
    .
    - 12 -
    J-A05033-17
    An officer may stop and briefly detain a person for investigatory
    purposes when that officer has “reasonable suspicion, based on specific and
    articulable facts, that criminal activity may be afoot.”     Commonwealth v.
    Allen, 
    725 A.2d 737
    , 740 (Pa. 1999).           “[T]he fundamental inquiry is an
    objective one, namely, whether the facts available to the officer at the
    moment of the intrusion warrant a man of reasonable caution in the belief
    that the action taken was appropriate.” Commonwealth v. Gray, 
    784 A.2d 137
    , 142 (Pa.Super. 2001).           We must consider the totality of the
    circumstances, including such factors as “tips, the reliability of the
    informants,     time,   location,   and   suspicious   activity.”   
    Id. (citing Commonwealth
    v. Freeman, 
    757 A.2d 903
    , 908 (Pa. 2000)).                   “[T]he
    totality of the circumstances test does not limit our inquiry to an
    examination of only those facts that clearly indicate criminal conduct.
    Rather, ‘even a combination of innocent facts, when taken together, may
    warrant further investigation by the police officer.’”       Commonwealth v.
    Rogers, 
    849 A.2d 1185
    , 1189 (Pa. 2004) (quoting Commonwealth v.
    Cook, 
    735 A.2d 673
    , 676 (Pa. 1999)).
    We conclude that Trooper Mason had reasonable suspicion to stop the
    second car.     Shortly before the stop, and three to four minutes after the
    radio report of an accident, Trooper Mason had arrived on the scene to find a
    vehicle, registered to Haines, crashed in the woods with its airbags
    deployed.     No driver was in sight.     The vehicle’s windows, while cracked,
    were intact, so Trooper Mason concluded that no one had been ejected from
    - 13 -
    J-A05033-17
    the vehicle; accordingly, he instructed other officers to begin canvassing the
    area. While waiting for a tow truck to arrive, Trooper Mason saw a vehicle
    approach the accident scene, stop for 10 to 15 seconds in the roadway, and
    continue up the road. At the time, shortly after 4 a.m., there was no other
    traffic on the road. When the car passed by Trooper Mason, he could not
    see inside but ran its license plate and discovered that it was owned by
    Samuel Haines of Latonka Drive in Mercer. The vehicle was headed in the
    direction of Lake Latonka.           Based on that information, Trooper Mason
    reasonably suspected that the vehicle might have stopped to pick up the
    operator of the wrecked vehicle.
    When Trooper Mason effectuated the stop, he was investigating a
    violation of section 3746(a)(2). Under the circumstances, it was reasonable
    for him to stop the car and briefly detain its occupants in order to determine
    whether the operator of the crashed vehicle, who had thus far failed to
    report the accident to police,11 was now in the second vehicle.      That the
    ____________________________________________
    11
    We have found no appellate case addressing the “immediacy”
    requirement of section 3746(a)(2). Some common pleas court decisions
    have construed the term “immediate” to require only substantial compliance.
    See, e.g., Commonwealth v. Levan, 11 Pa.D.&C.3d 186 (Montour Cnty.
    1979); Commonwealth v. Wetmore, 69 Pa.D.&C.2d 344 (Pike Cnty.
    1974). However, “on single-car violations there exists the great potential of
    a person who may be intoxicated driving on home, sobering up and then,
    when he is in better condition to be noble, report his accident.” Wetmore,
    69 Pa.D.&C.2d at 346. Further, since these decisions were issued, cell
    phones and other technologies now allow drivers to report accidents within
    minutes of their occurrence.
    - 14 -
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    second vehicle (1) stopped on the roadway near the accident, shortly after it
    occurred (roughly 4 a.m.) and (2) was registered to a person also named
    Haines who resided not far from the driver of the crashed car, was sufficient
    to justify the stop. See Commonwealth v. Zhahir, 
    751 A.2d 1153
    , 1157
    (Pa. 2000) (noting that reasonable suspicion requires lesser showing than
    probable cause “in terms of both quantity or content and reliability”) (citing
    Alabama v. White, 
    496 U.S. 325
    , 330-31 (1990)).
    Haines’ reliance on Andersen is misplaced.         Andersen held that
    police lacked reasonable suspicion to stop a vehicle based on the “mere
    assumption” that the registered owner of the vehicle, whose driving
    privileges had been suspended, was driving the car at the 
    time. 753 A.2d at 1294
    . We expressed our concern in Andersen as follows:
    Holding otherwise would subject drivers who lawfully
    operate vehicles owned or previously operated by a person
    with a suspended license to unnecessary traffic stops. The
    example of the family car demonstrates this point.
    Although a family car may be registered in the name of
    one individual, numerous additional drivers may be
    licensed and insured to operate the same vehicle. If we
    allow the police to stop any vehicle for the mere fact that it
    is owned or once operated by an individual whose
    operating privileges are suspended, then each additionally
    insured driver of the family car could be subject to traffic
    stops while lawfully operating the family car simply
    because the license of another operator of the vehicle is
    suspended.
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    J-A05033-17
    
    Id. In other
    words, Andersen rejected the notion that a particular vehicle
    is subject to a stop any time any past driver of that vehicle has a suspended
    license.12
    The situation before us is quite different.          Trooper Mason had a
    number of articulable facts to support his reasonable suspicion of a section
    3746(a)(2) violation: the car was damaged to the point that police called in
    a tow truck; police arrived on the scene shortly after the accident to find the
    driver missing; a car approached the accident scene and stopped for 10 to
    15 seconds; the second car was registered to a person with the same last
    name as Haines, who lived nearby.              Based on these facts, Trooper Mason
    drew the reasonable inference that the operator of the wrecked vehicle, who
    failed to immediately report the accident to police, may have been in the
    second vehicle pulling away from the scene.13
    ____________________________________________
    12
    While we distinguish Andersen on its facts, we also note that
    Andersen relied on the “articulable and reasonable grounds” standard,
    which the General Assembly later struck by amending section 6308(b) to
    “the less stringent standard of ‘reasonable suspicion.’”          See
    Commonwealth v. Hilliar, 
    943 A.2d 984
    , 990 n.1 (Pa.Super. 2008).
    13
    We also reject Haines’ argument that the Commonwealth had to
    provide information on the commonality of Haines’ last name in Mercer
    County.     According to Haines, the record does not support the
    Commonwealth’s contention that “it was obviously a relative or friend of . . .
    Haines driving the [second] vehicle since they were registered to people with
    the same surname.” Haines’ Br. at 14. This argument, however, ignores
    the totality-of-the-circumstances test employed by this Court.           This
    information, viewed together with the rest of the circumstances surrounding
    Haines’ accident, provided Trooper Mason with reasonable suspicion to stop
    the second vehicle.
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    J-A05033-17
    II.        Validity of Consent to Blood Draw under Birchfield
    Next, Haines argues that the trial court erred in denying his post-
    verdict motion for arrest of judgment based on Birchfield.14 The trial court,
    treating that motion as one for extraordinary relief, denied it before
    ____________________________________________
    14
    While we ultimately conclude that Haines’ arguments are best
    addressed through PCRA proceedings, we also note that the trial court could
    not have addressed Haines’ claims through a motion in arrest of judgment.
    While Haines correctly filed his motion after the verdict, a motion in arrest of
    judgment is limited to “causes appearing on the face of the record or
    insufficiency of the evidence.” Commonwealth v. Fitten, 
    657 A.2d 972
    ,
    973 (Pa.Super. 1995). “Causes appearing on the face of the record include
    such fundamental defects as lack of jurisdiction, former jeopardy or failure of
    an indictment or information to charge an offense.” Commonwealth v.
    Stark, 
    584 A.2d 289
    , 291 (Pa.Super. 1990). In reviewing a motion in arrest
    of judgment, the trial court must consider all evidence actually received,
    whether the trial rulings thereon were right or wrong. Commonwealth v.
    Jackson, 
    302 A.2d 420
    , 422 (Pa.Super. 1973) (internal quotation marks
    omitted). Further, a trial court may not separately justify an arrest of
    judgment in “the interest of justice” where the error does not appear on the
    face of the record. 
    Id. at 422-23.
    Here, Haines did not challenge the
    sufficiency of the evidence, nor did he assert an error on the face of the
    record. Rather, Haines raised a suppression issue well after his filing of an
    omnibus pretrial motion. Under these circumstances, the trial court could
    not grant Haines an arrest of judgment because his Birchfield issue was not
    a matter of record and the motion asked the trial court to exclude Haines’
    BAC results and then reassess the evidence.
    We also note that the trial court treated Haines’ written motion in
    arrest of judgment as a motion for extraordinary relief under Pennsylvania
    Rule of Criminal Procedure 704(B). However, Rule 704(B) motions must be
    made orally.      See Pa.R.Crim.P. 704(B)(1).     Further, “[a] motion for
    extraordinary relief [has] no effect on the preservation or waiver of issues
    for post-sentence consideration or appeal.” See 
    id. (B)(3). Thus,
    even if
    Haines had used the correct procedure and orally moved for extraordinary
    relief, this Court would not be able to review the issues he raised in that
    motion.
    - 17 -
    J-A05033-17
    sentencing on the ground that Haines had failed to raise it in his omnibus
    pretrial motion. The court reasoned that while Birchfield was not decided
    until the day before the verdict in this case, counsel should have known that
    Birchfield was pending in the Supreme Court and raised the issue before
    trial. N.T., 8/26/16, at 6-7 (suggesting that Haines’ counsel was ineffective
    for failing to raise Birchfield issue before trial). Haines asserts that it was
    not ineffective to fail to anticipate the Supreme Court’s ruling in Birchfield,
    and that a subsequent Post Conviction Relief Act (“PCRA”) petition therefore
    would likely be unsuccessful.15 Haines Br. at 16-17. For that reason, and
    because he may have already served his sentence before PCRA relief would
    be available, Haines asks that we invalidate his conviction now. 
    Id. at 17
    ____________________________________________
    15
    We make no judgment here about whether counsel was ineffective
    for failing to raise an issue then pending before the Supreme Court. We
    note, however, that while “counsel cannot be held ineffective for failing to
    anticipate a change in the law[,]” Commonwealth v. Cox, 
    983 A.2d 666
    ,
    702 (Pa. 2009), the issue of blood draws in DUI cases was before the United
    States Supreme Court at the time Haines filed his omnibus pre-trial motion.
    See Birchfield v. North Dakota, 
    136 S. Ct. 614
    (2015) (granting certiorari
    on December 11, 2015).          Thus, Haines’ case does not fit into the
    prototypical situation where counsel is charged with ineffectiveness because
    he failed to consult the “crystal ball.” See, e.g., Commonwealth v.
    Williams, 
    528 A.2d 980
    , 982-83 (finding counsel not ineffective for failing
    to anticipate United States Supreme Court’s decision in Batson v.
    Kentucky, 
    476 U.S. 79
    (1986) and mount challenge to jury composition);
    but cf. Commonwealth v. Humphrey, 
    375 A.2d 717
    , 719-20 (Pa. 1977)
    (concluding that counsel was ineffective for failing to object to witnesses’
    comments on defendant’s silence despite lack of binding authority where (1)
    issue was scheduled to be reargued before the Pennsylvania Supreme Court,
    (2) several federal courts had decided the issue favorably to defendant, and
    (3) counsel showed unawareness of current state of Pennsylvania law).
    - 18 -
    J-A05033-17
    (this Court “should utilize the Rules of Criminal Procedure . . . to arrive at
    the correct result without unnecessary delay”).
    Preliminarily, we note that Haines argues that because Birchfield
    requires a warrant for a blood draw, and no warrant was obtained in this
    case, the results of that blood draw must be suppressed. Haines’ Br. at 15.
    This contention, however, ignores a crucial component of Birchfield, which
    is that even without a warrant the results of a blood draw may be admissible
    if the defendant gave valid consent. See 
    Birchfield, 136 S. Ct. at 2185-86
    .
    Whether consent is valid under Birchfield depends on what the
    consenter     was     told    about    the     consequences   of   refusal.   See
    Commonwealth v. Evans, 
    153 A.3d 323
    , 329-31 (Pa.Super. 2016).
    Because Haines did not raise his claim before trial, the record does not
    contain sufficient information from which to determine whether his consent
    was valid. See 
    id. at 331
    (remanding for hearing on validity of appellant’s
    consent). As a result, although we are sympathetic to Haines’ position, we
    cannot grant him the relief he requests. His claim is best addressed under
    the PCRA, when an appropriate record can be developed.
    Judgment of sentence affirmed.16
    ____________________________________________
    16
    We note that Haines may have a cognizable ineffective assistance of
    counsel claim based on trial counsel’s failure to file a motion to suppress
    Haines’ BAC results or to address Birchfield prior to Haines’ trial. At
    sentencing, the trial court recognized this issue, noting that in the absence
    of a sentencing deal from the Commonwealth, the court would have to
    sentence Haines on section 3802(c) and “effectively charge [Haines’ counsel]
    (Footnote Continued Next Page)
    - 19 -
    J-A05033-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/30/2017
    _______________________
    (Footnote Continued)
    with ineffectiveness,” as “Birchfield was pending” in the United States
    Supreme Court. N.T., 8/26/16, at 7. However, we also acknowledge
    concern about whether Haines would be able to obtain PCRA relief, if
    appropriate, due to his short sentence. As the trial court itself noted, Haines
    may well “serve his sentence by the time he completes the PCRA process.”
    N.T., 8/26/16, at 9. Should Haines file a timely PCRA petition, we encourage
    the PCRA court to expedite consideration of his petition. Of course, we make
    no determination as to the merits of Haines’ claim, as original jurisdiction in
    these matters is vested in the court of common pleas. See 42 Pa.C.S. §
    9545(a).
    - 20 -