Com. v. Burley, R.

J. S02004/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
REGIS BURLEY, : No. 1480 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, April 27, 2016,
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0003070-2015
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 08, 2017
Regis Burley appeals from the judgment of sentence entered April 27,
2016,1 in the Court of Common Pleas of Lehigh County, following his
conviction in a waiver trial of two counts of driving under the influence of a
controlled substance (“DUI”).2 The trial court sentenced appellant to
72 hours to 6 months of imprisonment. We affirm.
The trial court summarized the facts as follows:
On November 1, 2014, at approximately 3:10 A.M.,
Trooper Eddie Pagan of the Pennsylvania State
Police, Bethlehem Barracks, was dispatched to the
1
Although appellant identifies his appeal as lying from the order finding him
guilty, the appeal properly lies from the judgment of sentence. We will,
therefore, treat this appeal as having been properly taken from the
judgment of sentence. See Commonwealth v. O’Neill, 578 A.2d 1334,
1335 (Pa.Super. 1990).
2
75 Pa. C.S.A. §§ 3802(d)(1)(ii) and 3802(d)(3).
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scene of a one (1) car vehicular accident on Irving
Street, near the intersection with Postal Road,
Allentown, Lehigh County, Pennsylvania. This
location was approximately two (2) to three (3)
miles from Trooper Pagan’s then present location.
The accident had been called in by a witness to the
accident at about 3:00 A.M.[Footnote 3]
[Footnote 3] The witness who had called
911 remained on the scene and Trooper
Pagan had the opportunity to speak with
him.
In addition, Trooper Hodgskins
testified that the area of the crash is an
industrial/commercial location, and there
is typically medium to heavy traffic on
Irving Street at that time of night due to
truck deliveries. Therefore, this Court
found that the circumstantial evidence
overwhelmingly showed that the accident
occurred within minutes of it being called
into the telecommunication center by the
passerby. In addition, the fact that the
[appellant’s] nose was bleeding further
supported that no substantial time
passed between the accident and the
troopers’ arrival on scene.
Trooper Pagan, in full uniform and in a marked police
cruiser, responded to the scene, along with his
partner, Trooper Michael Hodgskins.[Footnote 4]
Upon arriving on scene, Trooper Pagan and
Trooper Hodgskins observed a red Toyota Celica at
the bottom of a hill, pressed against a tree in a
grassy area approximately one hundred (100) feet
off the roadway. Trooper Pagan and
Trooper Hodgskins walked down the hill and
approached the driver’s side of the vehicle.
[Appellant] was seated in the driver’s seat, holding
the steering wheel. Trooper Pagan spoke with
[appellant], who exited the subject vehicle.
Trooper Pagan and Trooper Hodgskins posed general
questions to [appellant] to determine if medical
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treatment was necessary and in furtherance of the
investigation.[Footnote 5]
[Footnote 4] Five (5) troopers
responded to the scene, because initially
the extent of the injuries were [sic]
unknown.
[Footnote 5] At the time of the bench
trial, this Court denied [appellant’s]
Motion to Suppress his Statements.
[Appellant] argued that he was in
custody at the time that he made a
statement to the authorities, and
consequently it was obtained in violation
of his rights. However, the video
evidence demonstrated that
Trooper Hodgskins stated to another
trooper that “This is a DUI.” Unsolicited
and without prompting, [appellant]
stated, “It is a DUI. I should be home.”
Consequently, this Court found that the
statement made by Trooper Hodgskins
was not made to elicit an incriminating
response from [appellant], and therefore
[appellant’s] spontaneous comment was
not suppressed.
Trooper Pagan and Trooper Hodgskins noted that
[appellant’s] nose was bleeding and that he had his
eyes closed. When [appellant] opened his eyes,
Trooper Pagan observed that his eyes were glassy
and bloodshot. Furthermore, Trooper Pagan and
Trooper Hodgskins smelled alcohol on [appellant’s]
breath. [Appellant] was disoriented, unsteady on his
feet, and incoherent. Indeed, [appellant] did not
know where he was and could not respond
appropriately to the basic questions posed to him by
Trooper Pagan. Also, [appellant’s] speech was
slurred and he appeared disheveled.
Trooper Pagan and Trooper Hodgskins could not
successfully administer field sobriety tests to
[appellant] because he was unable to follow
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directions, and they was [sic] not certain [of] the
extent of [appellant’s] injuries.
[Appellant] was transported to Lehigh Valley Hospital
– Muhlenberg Campus, via ambulance. At Lehigh
Valley Hospital, Trooper Pagan[Footnote 6]
requested that blood be drawn from [appellant],
because in his experience and training, he believed
that [appellant] was under the influence of alcohol
and incapable of safe driving based on his
observations of [appellant] and the scene of the
accident. Consequently, in Trooper Pagan’s
presence, blood was drawn from [appellant] at
4:06 A.M. Trooper Pagan transported the blood to
Health Network Laboratories to be tested.
[Footnote 6] Trooper Hodgskins also
believed, in his training and experience,
that [appellant] was under the influence
of alcohol and incapable of safe driving.
In fact, Trooper Hodgskins indicated that
he believed that [appellant’s] blood
alcohol content was going to be quite
high, based on [appellant’s] behavior on
[the] scene. Indeed, inter alia,
[appellant] was unsteady of [sic] his
feet, unable to answer questions, and
could not follow directions.
[Appellant’s] blood alcohol content was .07. When
Trooper Pagan received the laboratory results, he
requested that the blood be retested for the
presence of controlled substances due to his
observations at the scene.[Footnote 7] [Appellant’s]
blood was retested, and the lab results revealed that
the blood sample contained 38.3 ng/ml PCP
(Phencyclidine).[Footnote 8]
[Footnote 7] Initially Trooper Pagan
believed that [appellant] was under the
influence of alcohol. However, when the
blood test result came back as .07%,
Trooper Pagan then believed that
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[appellant] was under the influence of a
controlled substance.
[Footnote 8] Melanie Stauffer, a
certifying scientist for Health Network
Laboratories, a licensed and approved
laboratory to determine blood alcohol
and drug content, testified with regard to
the chain of custody of the blood sample.
She explained that one (1) blood
specimen had been drawn from
[appellant]. Initially the blood was
tested for alcohol. This initial testing of
the blood occurred on November 3,
2014, at 11:02 P.M. Thereafter, the
blood was placed in long term storage
until November 21, 2014. At that time,
the blood was retested for the presence
of a controlled substance. Melanie
Stauffer acknowledged that the chain of
custody form failed to denote this second
testing, but that the blood was properly
maintained and retested according to lab
procedures. Consequently, in light of
Melanie Stauffer’s testimony at trial, this
Court did not find a viable chain of
custody issue.
Trial court opinion, 6/3/16 at 2-5 (paragraph numbering and citations to trial
exhibits omitted).
The record further reflects that appellant did not file post-sentence
motions. Rather, appellant filed a timely notice of appeal to this court, and
then complied with the trial court’s order directing him to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The trial court then filed its Rule 1925(a) opinion.
Appellant raises the following issues for our review:
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I. WHETHER THE TRIAL COURT ERRED IN
FAILING TO SUPPRESS [APPELLANT’S]
STATEMENT MADE AFTER THE POLICE STATED
“THIS IS DEFININTELY [SIC] A DUI[?]”
II. WHETHER THE TRIAL COURT’S VERDICT WAS
AGAINST THE WEIGHT OF THE EVIDENCE
BECAUSE THE COMMONWEALTH DID NOT
PRESENT SUFFICIENT TESTIMONY REGARDING
THE CHAIN OF CUSTODY OF [APPELLANT’S]
BLOOD AND TESTING THEREOF[?]
III. WHETHER THE TRIAL COURT’S VERDICT WAS
AGAINST THE WEIGHT OF THE EVIDENCE
BECAUSE THE COMMONWEALTH DID NOT
PRESENT SUFFICIENT TESTIMONY REGARDING
THE ACTUAL OPERATION OF A MOTOR
VEHICLE[?]
IV. WHETHER THE COMMONWEALTH FAILED TO
PRESENT SUFFICIENT EVIDENCE TO SUSTAIN
A CONVICTION UNDER 75 PA. § 3802[?]
Appellant’s brief at 5.
Appellant first complains that the trial court erred when it denied his
motion to suppress a statement he made because when appellant made that
statement, he was subject to a custodial interrogation and was not given his
Miranda3 warnings. Our standard of review for challenges to the denial of a
suppression motion is as follows:
[We are] 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
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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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 . . . 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. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).
Here, no dispute exists that appellant was in police custody and had
not yet received his Miranda warnings when he stated, “This is definitely a
DUI.” The inquiry, therefore, is whether the police were interrogating
appellant at the time he made the statement. Interrogation occurs when the
police should know that their words or actions are reasonably likely to elicit
an incriminating response, and the circumstances must reflect a measure of
compulsion above and beyond that inherent in custody itself.
Commonwealth v. Bracey, 461 A.2d 775, 780 (Pa. 1983). The law is
clear, however, that a spontaneously volunteered statement is admissible
notwithstanding a prior assertion of constitutional rights. In re D.H., 863
A.2d 562, 566 (Pa.Super. 2004) (citations omitted). Indeed, as our
supreme court has held, “Miranda does not preclude the admission of
spontaneous utterances.” Commonwealth v. Johnson, 42 A.3d 1017,
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1029 (Pa. 2012). In fact, our supreme court has often repeated that
volunteered or spontaneous statements that are not the product of police
conduct are admissible even when the suspect has not received Miranda
warnings. See Commonwealth v. Baez, 720 A.2d 711, 720 (Pa. 1998)
(reiterating that it is “well established in Pennsylvania that volunteered or
spontaneous utterances are admissible even though the declarant was not
‘Mirandized’”); see also Commonwealth v. Gibson, 720 A.2d 473, 480
(Pa. 1998) (repeating that “[i]t is well settled that a gratuitous utterance,
unsolicited by the police, is admissible and that Miranda warnings are
unnecessary under such circumstances”).
Here, the record reflects that the trial court admitted video evidence at
trial. That evidence demonstrated that as troopers attempted to administer
field sobriety tests to appellant, Trooper Hodgskins said to his colleagues,
“This is a DUI.” (Commonwealth Trial Exhibit 7.) Appellant then
immediately stated, “This is definitely a DUI.” (Id.) This court’s review of
the video evidence supports the trial court’s conclusion that appellant’s
statement was not responsive to any question asked of him by law
enforcement. Rather, appellant’s statement was an unsolicited, spontaneous
remark. Therefore, the trial court properly denied appellant’s motion to
suppress the statement.
Appellant’s second and third issues challenge the weight of the
evidence. Specifically, appellant complains that the testimony failed to
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adequately support the chain of custody of his blood draw, as well as his DUI
conviction. In order to raise a weight claim on appeal, Pennsylvania Rule of
Criminal Procedure 607 requires appellant to raise the claim with the trial
judge in a motion for a new trial “(1) orally, on the record, at any time
before sentencing; (2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). “The purpose of this
rule is to make it clear that a challenge to the weight of the evidence must
be raised with the trial judge or it will be waived.” Pa.R.Crim.P. 607,
comment.
Our review of the certified record reveals that appellant failed to file
any post-sentence motions. Additionally, a review of the trial transcript and
the sentencing transcript reveals that appellant failed to raise his weight
claims with the trial judge at any time before sentencing. Therefore,
appellant waives his second and third issues on appeal.
Appellant finally challenges the sufficiency of the evidence to sustain
his DUI conviction. It is well settled that when challenging the sufficiency of
the evidence on appeal, that in order to preserve that issue for appeal, an
appellant’s Rule 1925(b) statement must specify the element or elements
upon which the evidence was insufficient. Commonwealth v. Gibbs, 981
A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010)
(citation and internal quotation marks omitted). Here, in his Rule 1925(b)
statement, appellant frames his sufficiency challenge as follows: “The
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Commonwealth did not present sufficient evidence to sustain a conviction
under 75 Pa.[C.S.A.] § 3802.” (Concise statement of matters complained of
on appeal, 6/2/16 at 1, ¶B; Docket #20.) Appellant’s sufficiency claim as
set forth in his Rule 1925(b) statement fails to identify which element or
elements of DUI the Commonwealth allegedly failed to prove. Accordingly,
appellant waives his sufficiency challenge on this basis alone.
We do note, however, that a review of appellant’s brief on this issue
demonstrates that appellant does nothing more than incorporate his weight
challenges and rehash the trial evidence in an attempt to convince this court
that he did not drive under the influence of a controlled substance. In so
doing, appellant’s argument on this issue, therefore, challenges the weight
of the evidence, not its sufficiency. See, e.g., Gibbs, 981 A.2d at 281-282
(an argument that the fact-finder should have credited one witness’
testimony over that of another witness goes to the weight of the evidence,
not the sufficiency of the evidence); Commonwealth v. Wilson, 825 A.2d
710, 713-714 (Pa.Super. 2003) (a review of the sufficiency of the evidence
does not include a credibility assessment; such a claim goes to the weight of
the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.
1997) (the fact-finder makes credibility determinations, and challenges to
those determinations go to the weight of the evidence, not the sufficiency of
the evidence). As previously discussed, appellant waived all weight
challenges for failure to preserve them for appeal.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2017
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