Com. v. King, R.

J-A08018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
RAYMOND SCOTT KING :
: No. 3891 EDA 2016
Appellant :
Appeal from the Judgment of Sentence Entered December 1, 2016
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001074-2016
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 27, 2018
Raymond Scott King appeals from his judgment of sentence, entered in
the Court of Common Pleas of Montgomery County, following his conviction
after a non-jury trial of one count of Driving Under the Influence (DUI) —
highest rate of alcohol,1 and one count of DUI — general impairment.2 After
careful review, we affirm.
The trial court summarized the relevant facts underlying this case as
follows:
On September 5, 2015, at roughly 10:49 P.M., Officer [Matthew]
Musselman (“the affiant”) of the Lower Pottsgrove Township Police
Department was dispatched to 2596 Pruss Hill Road in
Montgomery County, Pennsylvania, upon report of a motor vehicle
accident. The affiant arrived on [the] scene and found [King]
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1 75 Pa.C.S. § 3802(c).
2 75 Pa.C.S. § 3802(a)(1).
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* Retired Senior Judge assigned to the Superior Court.
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sitting in the middle of the road, with his black motorcycle laying
nearby. The affiant noticed [King’s] bloodshot eyes and detected
an alcohol[] odor emanating from his person. However, when
asked, [King] told the affiant he had not been drinking. The affiant
also observed blood on the seat of [King’s] motorcycle and on his
pants.
First responder to the scene, Matthew Burfete (“the paramedic”),
testified at the December 1, 2016, bench trial as to his
observations of the scene of [King’s] motorcycle accident and the
resulting injuries on September 5, 2015. The paramedic was a
firefighter and paramedic for about five (5) years at the time of
the incident, and in that time had previously encountered and
became familiar with the effects of alcohol on a person. The
paramedic found [King] in the middle of the roadway and his
motorcycle lying on its side nearby in a ditch. According to the
paramedic, [King] acted, ‘slightly confused and somewhat
uncooperative[,]’ while he was being examined for injuries.
[King’s] injuries included a right femur fracture and a dislocation
or fracture of the right knee; yet, [King] initially refused any offer
to help him stand and be placed onto the litter (‘gurney’), insisting
he be allowed to do so himself. The paramedic testified individuals
who suffer the type of injury [King] suffered typically are
unwilling, not to mention unable, to stand, as the case ultimately
turned out to be for [King]. [King] was eventually convinced to
allow paramedics to help him onto the gurney and in the back of
the ambulance, after which paramedics more thoroughly
examined [King] and obtained his vital signs. While en route to
the hospital the paramedic spoke with [King] to determine, inter
alia, how the accident occurred and whether [King] had been
drinking. [King] admitted to drinking two (2) glasses of wine to
the paramedic, which contrasted with his previous statement to
the affiant that he had not been drinking anything[.]
At the end of his direct examination, the paramedic testified that
based upon his observations, i.e., odor of alcohol; bloodshot,
glassy eyes; strange, uncooperative behavior, it was his belief
[King] was intoxicated on the night of the incident, September 5,
2015.
[King] was taken to nearest trauma center at West Reading
Hospital, approximately thirty (30) to forty (40) minutes away
from the scene of the accident. The affiant was stationed outside
[King’s] hospital room, whereupon he observed an intravenous
(IV) line in [King’s] arm and medical personnel with several vials
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of [King’s] blood (from a blood draw conducted by the hospital in
treating [King’s] injuries) inside the trauma bay. Later, when the
affiant was able to enter [King’s] hospital room, he read to [King]
the DL-26 form containing an enhancement penalty clause for
refusal to submit to blood testing, after which [King’s] blood was
drawn (“‘legal’ blood draw”), this at the affiant’s direction; then
placed in signed, sealed vials and given to the affiant to be sent
to a lab for further testing. [King’s] blood was first drawn at the
hospital’s direction for medical treatment purposes in accordance
with hospital procedure (“‘medical’ blood draw”), before [King]
was read the DL-26 form.
The separate, ‘legal’ blood draw was conducted subsequent to the
DL-26 form being read to [King], (again, the ‘medical’ blood draw
preceded this ‘legal’ blood draw); the affiant collected the vials of
blood from that ‘legal’ blood draw; and sent the samples to an
independent lab for further testing. The affiant specifically
recalled the procedure in Montgomery County at the time was, in
fact, to place collected blood vials in kits to be sent to a lab for the
appropriate testing, as opposed to the hospital testing the blood-
alcohol concentration (“BAC”) of individuals at the hospital. The
trial court asked the affiant to clarify for the record, as follows:
[THE COURT]: Officer, let me just make sure I
understand. The blood that you had
taken as the result of the DL-26—
[THE WITNESS]: Yes?
[THE COURT]: -- did you take that blood with you for
testing or was that testing done at the
hospital?
[THE WITNESS]: No. That was taken with me back to
the station.
The affiant received vials of [King’s] blood taken from the ‘legal’
blood draw at 12:41 A.M. on September 6, 2015.
Trial Court Opinion, 8/7/17, at 1-4 (internal citations and footnotes omitted).
On July 12, 2016, King filed his first motion to suppress, objecting to
the admission of the results of the ‘legal’ blood draw that was conducted
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pursuant to the DL-26 form. In this first motion, King argued that, pursuant
to Birchfield v. North Dakota, 136 S. Ct. 2160 (2016),3 the warrantless
blood draw was unconstitutional, because there were no exigent
circumstances to overcome the warrant requirement and King’s consent to the
‘legal’ blood draw was coerced by the threat of enhanced criminal penalty in
the pre-Birchfield DL-26 form.
Because of the challenge to the ‘legal’ blood draw, the affiant prepared
and filed the first search warrant application and an affidavit of probable cause
on July 27, 2016, seeking the results of the ‘medical’ blood draw that was
ordered by the hospital in conjunction with its treatment of King. Though it
contained irrelevant references to the affiant’s training and familiarity with
illegal controlled substances, the affidavit primarily consisted of the facts and
circumstances surrounding the September 5, 2015 motorcycle accident.
Specifically, observations of King’s bloodshot, glassy eyes, the scent of alcohol
coming from him, and King’s admission to drinking before the crash served as
probable cause to search the medical records from West Reading Hospital.
The first search warrant (the “July Warrant”) was executed on the same day,
seizing the results of King’s ‘medical’ blood draw, which had to be sent to NMS
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3 In Birchfield, the United States Supreme Court held that because the taking
of a blood sample is a search within the meaning of the Fourth Amendment to
the Constitution, police officers may not compel the taking of a blood sample
without a search warrant. Birchfield, 136 S. Ct. at 2184. The Birchfield
court found laws that impose criminal penalties for refusing to consent to a
blood test are unconstitutional because “motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal offense.”
Id. at 2185.
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Labs to be converted from ethanol to blood alcohol concentration. The
toxicology report from NMS Labs reflects the conversion to blood alcohol
concentration, which was at the high rate of 0.272%.
On August 11, 2016, a suppression hearing was held on King’s July 12,
2016 motion to suppress the blood results derived from the ‘legal’ blood draw.
The trial court granted King’s motion, reasoning the ‘legal’ blood draw
conducted on King pursuant to the DL-26 form was unconstitutional in
accordance with the United States Supreme Court’s holding in Birchfield.
On August 17, 2016, King filed his second motion to suppress, this time
seeking to suppress the results of the ‘medical’ blood draw seized through the
July Warrant. In his second motion, King argued the July affidavit of probable
cause contained “misleading and/or inaccurate information” that the
magisterial district judge used to form the basis for the issuance of the search
warrant and that the results of the ‘medical’ blood draw were “fruit of the
poisonous tree” suppressed by the trial court at the first suppression hearing
on August 11, 2016.
Because of King’s challenges to the July Warrant, on September 17,
2016, the affiant filed a second search warrant application and affidavit of
probable cause. Therein, the affiant sought additional medical records in order
to assist the Commonwealth in proving the ‘medical’ blood draw was
legitimately conducted by medical personnel for purposes of independent
medical treatment and the results thereof were not fruit of the warrantless
‘legal’ blood draw. The September affidavit contained the same observations
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to support probable cause as the July affidavit, though the September affidavit
omitted the irrelevant information and immaterial references to illegal drugs
included in the July affidavit, i.e., the affiant’s law enforcement background in
investigating illegal controlled substances crimes, and a note about Reading
Hospital’s “common practice . . . to test a patient’s blood for alcohol and or
illegal narcotics.” N.T. Suppression Hearing, 11/9/16, at 53-56, 60. A warrant
was issued pursuant to the September 17, 2016 application (the “September
Warrant”) on the same day. The September Warrant authorized the seizure
of the relevant records, which indicated the ethanol test of King’s blood was
ordered by medical personnel, Elaine Miller, R.N., for the purpose of safely
treating King’s extensive injuries.
On November 7, 2016, King filed his third motion, seeking to suppress
his medical records documenting the parties responsible for ordering the
‘medical’ blood draw, and the reasoning for same. In this third motion to
suppress, King argued the September affidavit of probable cause, like the July
affidavit, contained “misleading and/or inaccurate information” that the
magisterial district judge used to form the basis for the issuance of the
subsequent search warrant, and that specific medical records were “fruit of
the poisonous tree” suppressed by the trial court at the first suppression
hearing on August 11, 2016.
On November 9, 2016, a second suppression hearing was held to
address King’s second and third motions to suppress the results of the
‘medical’ blood draw, seized upon the execution of the July Warrant, and the
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medical records documenting the parties responsible for ordering the ‘medical’
draw and the reasoning for same, which were seized upon the execution of
the September Warrant. After the hearing, the trial court concluded that the
‘medical’ and ‘legal’ blood draws were separate and distinct, the first being
legitimately conducted for medical treatment purposes, and the latter being
done for purposes of criminal prosecution and pursuant to the DL-26 form.
Trial Court Opinion, 8/7/17, at 8. Therefore, King’s second and third motions
to suppress were denied.
After a bench trial before the Honorable Gail A. Weilheimer on December
1, 2016, King was found guilty of driving under the influence — highest rate
of alcohol and driving under the influence — general impairment. The court
sentenced King to seventy-two (72) hours’ to six (6) months’ imprisonment,
and ordered him to submit to both Court Reporting Network and drug and
alcohol evaluations, to comply with subsequent treatment recommendations,
to attend safe-driving school, and to surrender his driver’s license to the clerk
of courts.
King filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. On appeal, King
presents the following issues for our consideration:
1. Whether the trial court erred in denying [King’s] [m]otion to
[s]uppress because the affidavit of probable cause used to obtain
the July 27, 2016 search warrant contained material
misstatements of fact which caused the neutral and detached
magistrate to erroneously believe that [King] was under
investigation for driving under the influence of illegal drugs?
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2. Whether the trial court erred in denying [King’s] [m]otion to
[s]uppress because the affidavit of probable cause used to obtain
the September 17 [sic], 2016 search warrant was misleading and
the evidence obtained through this warrant was not from an
independent source?
3. Whether the evidence at trial was insufficient to prove [King]
guilty [of DUI — highest rate] beyond a reasonable doubt where
the Commonwealth produced no evidence to prove the time at
which the accident occurred, and if [King’s] medical records are
suppressed by this Court, the Commonwealth produced no
evidence to prove [King’s] blood alcohol concentration?[4]
Appellant’s Brief, at 5.
Our standard of review when assessing a challenge to the denial of a
motion to suppress is well-established. Review is limited to whether the
record supports the suppression court’s factual findings and whether the legal
conclusions drawn from those facts are correct. Commonwealth v. Jones,
988 A.2d 649, 654 (Pa. 2010). Where the record supports the factual findings
of the suppression court, we are bound by those findings and reverse only if
the court’s legal conclusions are erroneous. Id. When the appeal of the
determination of the suppression court turns on allegations of legal error, the
legal conclusions of the suppression court are not binding on the appellate
court, which must determine if the law was properly applied to the facts. Id.In essence, King attacks the trial court’s denial of his motions to
suppress on the grounds that the affidavits of probable cause for both search
warrants contained material misstatements of fact that should invalidate the
warrants. Misstatements of fact in a search warrant affidavit will invalidate
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4 King does not challenge his DUI — general impairment conviction.
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a search and require suppression only if they are deliberate and material.
Commonwealth v. Mickell, 598 A.2d 1003, 1010 (Pa. Super. 1991); see
also Commonwealth v. Zimmerman, 422 A.2d 1119, 1124 (Pa. Super.
1980) (“appellant must establish that the police (1) made a misstatement,
which is both (2) deliberate and (3) material”). A material fact is one “without
which probable cause to search would not exist.” Commonwealth v.
Minoske, 441 A.2d 414, 418 (Pa. Super. 1982). In deciding whether a
misstatement is material, the test is if the misstatement is essential to the
affidavit. Mickell, 598 A.2d at 1010. In order to determine whether the
misstatements are essential, they must be deleted from the application, and
if probable cause still exists within the affidavit, the misstatements are
immaterial. Commonwealth v. Yucknevage, 390 A.2d 225, 227 (Pa. Super.
1978).
Here, King objects to the inclusion of the affiant officer’s employment
background and familiarity with illegal substances, because the affiant only
suspected King of driving under the influence of alcohol, not a controlled
substance. Appellant’s Brief, at 25-26. The July 27, 2016 affidavit contained
seven (7) references to illegal drugs, while the September 17, 2016 affidavit
contained four (4), which King deems “still too many.” Id. at 34. King claims
that these “misleading” references caused the magisterial district judge to
believe King was under investigation for illegal drugs. Id. at 21-25. King
asserts the misstatements were material and, by omitting them, probable
cause to search King’s medical records did not exist. We disagree.
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The alleged “defects” in the July 27, 2016 warrant’s affidavit of probable
cause were not essential because without them, probable cause remained.
Yucknevage, supra. The statements included in the affidavit were not
deliberate; the affiant, himself, classified the references to his experience with
illegal controlled substances, which were irrelevant to King’s case, as “clerical
errors.” N.T. Suppression Hearing, 11/9/16, at 67, 69. Without the
statements regarding the affiant’s background and the hospital’s typical
practices of testing for alcohol and illegal controlled substances, the affidavit
still contained descriptions of King’s bloodshot, glassy eyes, the scent of
alcohol emanating from him, and King’s admission to drinking before the
crash. The affiant made an immaterial error by including his experience with
controlled substances in the July 27, 2016 affidavit, and, without those
statements, probable cause remained to search King’s medical records for
blood tests and his blood alcohol concentration.
Because the September 17, 2016 affidavit of probable cause listed these
same factual underpinnings, with fewer references to illegal drugs, probable
cause also existed for the issuance of the second search warrant. Further, the
September Warrant sought additional information, specifically, the medical
personnel responsible for the draw and the reasons for same. The affiant
applied for this second warrant after the challenge to the July Warrant, in
order to assist the Commonwealth in proving the ‘medical’ blood draw was
distinct from the ‘legal’ blood draw. This court has held that results from blood
draws conducted for independent medical treatment of DUI suspects, which
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are seized through a validly obtained and executed search warrant, should not
be suppressed. Commonwealth v. Miller, 996 A.2d 508, 515-16 (Pa. Super.
2010). On appeal, King does not dispute that the ‘medical’ blood draw was
legitimately conducted for independent medical treatment. Because the
‘medical’ blood draw was legitimately conducted for the purpose of
independent medical treatment, the trial court did not err in denying King’s
motions to suppress.5
Finally, King argues the evidence was insufficient to prove beyond a
reasonable doubt that his blood alcohol concentration was in the highest rate
within two hours of the accident.6 Appellant’s Brief, at 47-61. We find this
argument to be meritless.
In assessing the sufficiency of the evidence, we must view “all evidence
and reasonable inferences therefrom in the light most favorable to the
Commonwealth, as the verdict winner, and consider whether the trier of fact
could have found that each element of the offense charged was supported by
evidence and inference[s] sufficient to prove guilt beyond a reasonable
doubt.” Commonwealth v. Brown, 701 A.2d 252, 254 (Pa. Super. 1997)
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5 King claims that because the warrants are invalid, the Commonwealth cannot
prove his blood alcohol concentration beyond a reasonable doubt. Given our
finding that the warrants were valid, we do not need to address this part of
his sufficiency claim.
6 (As required to support a conviction for DUI — highest rate of alcohol under
75 Pa.C.S. § 3802(c)). Although the Commonwealth argues that the issue of
timing has been waived, we find that the issue has been preserved for our
review. See, Appellant’s Concise Statement, 2/3/2017.
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(citations omitted). The Commonwealth “may sustain its burden by proving
the crime’s elements with evidence which is entirely circumstantial and the
trier of fact, who determines credibility of witnesses and the weight to give
the evidence produced, is free to believe all, part, or none of the evidence.”
Id.
Here, the evidence adduced at trial demonstrated the following: the
affiant received a call at 10:49 P.M. from dispatch, which came after a witness
reported a one-vehicle motorcycle accident; the affiant arrived on the scene
to find still-wet blood on the seat of the motorcycle and pooled beneath King,
indicating the accident had occurred recently; and, after the paramedic team
transported King to West Reading Hospital, the ‘medical’ blood draw was
ordered at 11:55 P.M., only one hour and six minutes after the call to the
affiant. This blood draw showed a blood alcohol concentration of 0.272%.
From these circumstances, it was reasonable for the trial court to infer that
King’s blood alcohol concentration was above the highest rate of alcohol7
within two hours of operating his motorcycle. Accordingly, King’s sufficiency
claim is meritless.
Judgment of sentence affirmed.
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7See 75 Pa.C.S. § 3802(c) (classifying a blood alcohol concentration of 0.16%
or higher as the highest rate of alcohol).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/18
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