Com. v. Ellis, M.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MICHAEL LAMONT ELLIS, : No. 1560 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, July 24, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0003801-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 18, 2014
Following a jury trial, Michael Ellis was convicted of fleeing or elluding,
driving under the influence (“DUI”) .16 or higher, DUI-causing accident,
DUI-general impairment, recklessly endangering another person (“REAP”),
driving under suspension, and numerous summary offenses. Herein, he
appeals from the judgment of sentence entered July 24, 2013, in the Court
of Common Pleas of Allegheny County. We affirm.
Officers Jeffrey Labella and Elizabeth Vitalbo of the Pittsburgh Police
Department were on patrol duty in the early morning hours of December 31,
2011, in the Point Breeze/Squirrel Hill area of the city. At approximately
3:40 a.m., the officers observed the black Jeep on Penn Avenue swerving on
the roadway. Appellant’s vehicle made a right-hand turn against a red light
on South Dallas Avenue without stopping or signaling. On Dallas, the
* Retired Senior Judge assigned to the Superior Court.
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officers observed the Jeep continue to swerve and cross the centerline and
travel off the roadway to the right-hand side. After observing these traffic
violations, the officers activated their lights and sirens and attempted a
traffic stop. The Jeep did not come to a complete stop, but the engine
remained on and the officers testified that the Jeep appeared to inch forward
as they approached. Using the police vehicle’s P.A. system, the officers got
appellant to finally put his vehicle in park. (Id. at 39.) However, appellant
did not pull over to the curb, but stopped the car in the middle of the road.
(Id. at 56.) When the officers approached, they suspected that he might be
intoxicated upon observing his glassy and bloodshot eyes and hearing his
slurred speech. (Id. at 41-42.)
Appellant failed to comply with the officers’ verbal instructions to put
the car in park. Instead, he turned the steering wheel in the direction of
Officer Labella and drove away at a rapid speed. (Id. at 42-43.)
Officer Labella had to jump backwards into the opposing lane of traffic to
avoid being struck by appellant’s car. (Id. at 43, 56.) The officers
immediately pursued appellant’s vehicle.
Appellant drove erratically through a residential neighborhood; he was
driving approximately 60 miles per hour in a 25-miles-per-hour zone. (Id.
at 44.) He went through two red lights without pausing or stopping, at the
corner of Wilkins and Beechwood and one at Wilkins and Shady. (Id.) Near
the intersection of Wilkins and Wightman, appellant’s vehicle crossed the
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opposite lane of traffic and went up on the sidewalk. (Id. at 44-45, 72.)
The vehicle then hit several parked vehicles and two telephone poles. (Id.)
The vehicle finally came to rest head-on with a tree.
The officers approached with guns drawn and instructed appellant to
show his hands; appellant did not comply. (Id. at 74-75.) To remove
appellant from the vehicle, Officer Labella had to smash the passenger side
window, as the doors would not open. Appellant was pulled through the
window and placed under arrest. (Id. at 74-76.)
Appellant was transported to Mercy Hospital where Officer Kevin
Walters, an impaired driving specialist, obtained his consent to a blood draw
for chemical testing. (Id. at 112-113.) As he consented, refusal warnings
were not read to appellant. Appellant’s blood alcohol content was .242.
(Id. at 129.)
Appellant filed a motion to suppress. Following a hearing, the
Honorable Jill E. Rangos denied appellant’s motion. A jury trial was held on
April 17-18, 2013, and appellant was convicted of the aforementioned
crimes.1 On July 24, 2013, appellant was sentenced to an aggregate term of
12 to 72 months’ incarceration with a consecutive period of three years’
probation. Appellant’s post-sentence motion was denied on August 5, 2013.
A timely notice of appeal followed, and the following issues have been
preserved for our review:
1
Appellant was found not guilty of escape.
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I. WAS THE EVIDENCE INSUFFICIENT TO
SUPPORT THE CONVICTION FOR RECKLESSLY
ENDANGERING ANOTHER PERSON, WHERE
THE EVIDENCE FAILED TO ESTABLISH EITHER
THAT OFFICER LABELLA WAS PLACED IN
ACTUAL DANGER OR THAT THE REQUISITE
MENS REA OF RECKLESSNESS COULD BE
PROPERLY INFERRED?
II. DID THE TRIAL COURT ERR IN DENYING THE
MOTION TO SUPPRESS THE BLOOD TEST
EVIDENCE WHERE [APPELLANT] WAS NOT IN A
PHYSICAL OR MENTAL STATE IN WHICH HE
COULD FREELY AND VOLUNTARILY GIVE
CONSENT DUE TO THE NATURE OF HIS
INJURIES AND ONGOING MEDICAL
TREATMENT?
III. DID THE TRIAL COURT ABUSE ITS
DISCRETION IN IMPOSING A MANIFSTLY [sic]
EXCESSIVE AND UNREASONABLE SENTENCE
WHICH FAILED TO CONSIDER REHABILITATIVE
NEEDS?
Appellant’s brief at 7.
Appellant first argues that the evidence was insufficient to support his
conviction for REAP. Specifically, appellant argues that there was no
evidence to support a finding that appellant placed Officer Labella in actual
danger or that he acted with the requisite mens rea. We disagree.
In reviewing a claim challenging the sufficiency of the evidence to
support the verdict, we:
view[] all the evidence admitted at trial in the light most
favorable to the verdict winner, [and determine if] 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.
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In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from
the combined circumstances. The Commonwealth may
sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above
test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the trier of
fact[,] while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super. 2003) (citations
omitted).
Pursuant to 18 Pa.C.S.A. § 2705, “[a] person commits a misdemeanor
of the second degree if he recklessly engages in conduct which places or
may place another person in danger of death or serious bodily injury.”
“Serious bodily injury” is defined as injury that “creates a substantial risk of
death or which causes serious, permanent disfigurement, or protracted loss
or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A.
§ 2301. To sustain a conviction for REAP, “the Commonwealth must prove
that the defendant had an actual present ability to inflict harm and not
merely the apparent ability to do so.” Commonwealth v. Hopkins, 747
A.2d 910, 915 (Pa.Super. 2000). “Danger, not merely the apprehension of
danger, must be created.” Id. at 916. “The mens rea for recklessly
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endangering another person is ‘a conscious disregard of a known risk of
death or great bodily harm to another person.’” Id.Viewing the evidence in the light most favorable to the
Commonwealth, as we must under our standard of review, we conclude the
evidence sufficiently supports appellant’s conviction. The Commonwealth
presented the testimony of two police officers that witnessed appellant’s
actions. Officer Vitalbo testified that during the initial traffic stop, appellant
cut the wheel of his vehicle all the way to the left toward Officer Labella, who
was inches from the driver’s side door. (Notes of testimony, 4/17-18/13 at
42-43.) Officer Labella testified, “I asked him for his documents; his driver’s
license, proof of insurance. He just kind of stared forward . . . He sort of
looked at me, cut the wheel as hard as he could to the left and just floored
it.” (Id. at 67.) Officer Labella testified that he had to jump backwards into
the opposing lane of traffic to avoid being hit by the car or getting his feet
run over. (Id. at 68, 70.)
Clearly, these facts and the reasonable inferences drawn therefrom are
sufficient to permit the jury to have found appellant recklessly endangered
Officer Labella. At no time did it appear appellant was merely reckless; but
rather, he suddenly swerved his car purposefully toward the officer which
predictably would result in serious injury or even loss of life. The likelihood
that the officer would be injured or even killed was highly predictable.
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Appellant’s actions demonstrate the “conscious disregard of known risk”
which supports a conviction for REAP.
Next, appellant argues that the trial court erred in denying the motion
to suppress. When reviewing a challenge to a trial court’s denial of a
suppression motion, our standard of review is as follows:
Our standard of review in addressing a challenge to
the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether
the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed
before the suppression court, we may consider only
the evidence of the Commonwealth and so much of
the evidence for the defense as remains
uncontradicted when read in the context of the
record as a whole. Where the suppression court’s
factual findings are supported by the record, 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. Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 2012),
appeal denied, 57 A.3d 68 (Pa. 2012), quoting Commonwealth v. Jones,
988 A.2d 649, 654-656 (Pa. 2010).
Specifically, appellant argues that the blood draw, which resulted in
the .242 BAC reading, was illegal as it was done without his consent and
there is no documentation supporting such a theory. (Appellant’s brief at
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29.) Additionally, appellant avers that he was not in a physical or mental
state in which he could have voluntarily provided consent. (Id.)
Initially, we keep in mind several principles. The withdrawal of blood
is a search subject to the protections of the Fourth Amendment to the United
States Constitution and Article I, Section 8 of the Pennsylvania Constitution.
Commonwealth v. Kohl, 615 A.2d 308, 312-315 (Pa. 1992). To require a
person to undergo a blood test, police must generally have probable cause
to believe the person has been driving under the influence of a controlled
substance. Id. at 313, 315-316; Commonwealth v. Thur, 906 A.2d 552,
567 (Pa.Super. 2006), appeal denied, 946 A.2d 687 (Pa. 2008). However,
it has long been established that absent probable cause, the withdrawal of
blood may be justified by showing the consent of the person in question.
See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (reiterating
that it is “well settled that one of the specifically established exceptions to
the requirements of both a warrant and probable cause is a search that is
conducted pursuant to consent.”).
Recently, in Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013), our
supreme court reversed a decision of this court that vacated multiple
convictions related to a fatal motor vehicle accident, including several counts
of DUI and one count of homicide by vehicle. Our supreme court observed
that a panel of this court had held that “[the police] failure to inform [Smith]
of the criminal consequences of the blood test had the effect of misleading
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or coercing [Smith], rendering his consent unknowing and invalid.” Id. at
567. However, in reaching its decision to reverse this court’s determination,
our supreme court stated the following:
[T]his Court has been clear that no one fact or
circumstance can be talismanic in the
evaluation of the validity of a person’s consent.
Accordingly, to the extent the Superior Court held
that police officers must explicitly inform drivers
consenting to blood testing that the results of the
test may be used against them in criminal
prosecutions in order for the consent to be valid, it
went too far.
Id. at 572 (emphasis added) (citations omitted).
In Smith, our supreme court went on to explain the validity of consent
to a blood test following an accident as follows:
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 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. See Commonwealth v.
Cleckley, 558 Pa. 517, 738 A.2d 427, 433 (1999)
(“one’s knowledge of his or her right to refuse
consent remains a factor in determining the validity
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of consent . . .” and whether the consent was the
“result of duress or coercion.”)
Id. at 573 (some internal citations and quotation marks omitted). The court
in Smith reviewed the totality of the circumstances of the case and
ultimately concluded that Smith had consented to the blood testing; it
provided the following analysis:
Objectively considering the totality of the
circumstances, we find that the trial court correctly
found that Officer Agostino did not use deceit,
misrepresentation, or coercion in seeking [Smith’s]
consent for the blood draw and testing, thus not
invalidating the blood draw or the results therefrom
on those bases. Here, the facts reveal that [Smith]
was a college graduate, was not injured, and was
explicitly informed of his right to refuse the test.
[Smith] further understood that the test was to rule
out the possibility that alcohol or drugs were factors
in the accident. With all of these understandings in
mind and his faculties fully about him, [Smith]
willingly went to the hospital and participated in the
blood draw. On the basis of the totality of the
evidence, when viewed objectively, we conclude that
a reasonable person’s consent to this blood draw
would have contemplated the potentiality of the
results being used for criminal, investigative, or
prosecutorial purposes. Thus, Officer Agostino
validly obtained from [Smith] his consent for the
blood alcohol test.
Id. at 573-574 (footnotes omitted).
Our review of the record reflects that the trial court specifically found
that appellant consented to the blood test. Likewise, our review of the facts
presented to the trial court leads us to the same conclusion. Officer Walters
testified that he was informed there was a crash possibly involving a DUI
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and he was needed in connection with a blood draw. (Notes of testimony,
4/17-18/13 at 15-20.) The officer was provided with appellant’s identifying
information and then introduced himself to appellant at the hospital and
explained that he was an impairment expert. (Id. at 4, 12-13.)
Officer Walters was unaware of whether appellant had been treated with any
drugs or painkillers; however, when asked if appellant was lucid and
understood what he was saying, the officer testified that appellant was able
to answer all of the questions asked. (Id. at 4-5, 10, 12.) Specifically,
Officer Walters testified that appellant gave permission for blood that had
already been drawn to be tested for blood alcohol content. (Id. at 5, 12.)
The officer testified that if appellant had refused, he would have documented
the refusal in his paperwork. (Id. at 5-7.) Within a few hours of the blood
draw, appellant left the hospital on foot and under his own power. (Id. at
13-19.) There was no evidence presented at the suppression hearing that
appellant’s consent was the product of duress, coercion, or undue pressure.
Appellant himself testified that he was told he would be free to go and would
be contacted later about a citation. (Id. at 23.)
Appellant’s argument is based on the assertion that he was a
“bloody mess.” (Appellant’s brief at 21.) We note that Officer Walters
conceded that appellant’s face was bloody. However, there is no support for
the assumption that the blood on appellant’s face or his physical injuries
resulted in his inability to give consent. The trial court also found appellant’s
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testimony was “not credible as his statements were inconsistent and
self-serving.” (Trial court opinion, 5/7/14 at 5.)
We are constrained to conclude that under the totality of the
circumstances, appellant possessed the minimal awareness necessary to
consent to blood testing. As the court concluded in Smith, “[o]n the basis
of the totality of the evidence, when viewed objectively, we conclude that a
reasonable person’s consent to this blood draw would have contemplated the
potentiality of the results being used for criminal, investigative, or
prosecutorial purposes.” Smith, supra at 573.
The final issue presented concerns the discretionary aspects of
sentencing. Appellant is challenging the discretionary aspects of sentencing
for which there is no automatic right to appeal. Commonwealth v. Koren,
646 A.2d 1205, 1207 (Pa.Super. 1994). This appeal is, therefore, more
appropriately considered a petition for allowance of appeal. 42 Pa.C.S.A.
§ 9781(b). Two requirements must be met before a challenge to the
judgment of sentence will be heard on the merits. Koren, supra. First, the
appellant must set forth in his brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of his
sentence. Id.; Pa.R.A.P. 2119(f). Second, he must show that there is a
substantial question that the sentence imposed is not appropriate under the
Sentencing Code. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Urrutia,
653 A.2d 706, 710 (Pa.Super. 1995).
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The determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis. Commonwealth v.
Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997). Generally,
however, in order to establish a substantial question, the appellant must
show actions by the sentencing court inconsistent with the Sentencing Code
or contrary to the fundamental norms underlying the sentencing process.
Id.Appellant has included in his brief the mandatory concise statement of
reasons relied upon for allowance of appeal from the discretionary aspects of
his sentence. (Appellant’s brief at 7-8.) Therein, appellant complains that
his sentence, which was within the statutory limits, was manifestly excessive
because the court focused solely on the protective needs of the community
and failed to consider his rehabilitative needs. (Appellant’s brief at 39.)
Such an argument does not raise a substantial question. Commonwealth
v. Edwards, 71 A.3d 323 (Pa.Super. 2013), appeal denied, 81 A.3d 75(Pa. 2013), quoting Commonwealth v. Dunphy, 20 A.3d 1215, 1222
(Pa.Super. 2011) (a panel of this court has determined an allegation that the
sentencing court “failed to consider” or “did not adequately consider” various
factors does not raise a substantial question that the sentence was
inappropriate).
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Judgment of sentence affirmed.
Strassburger, J. files a Concurring Memorandum.
Wecht, J. concurs in the result of the Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2014
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