Com. v. Rankin, B.

J-S65018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BARRY E. RANKIN,
Appellant No. 2765 EDA 2014
Appeal from the Judgment of Sentence September 8, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014425-2013
BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 07, 2015
Appellant, Barry E. Rankin, appeals from the judgment of sentence
entered following his convictions of fleeing and driving under the influence.
We affirm.
The trial court summarized the factual history of this case as follows:
On September 23, 2013, at approximately 1:28 in the
morning, Pennsylvania State Trooper Brendan Connor was on
duty patrolling Interstate 95, near the Allegheny Avenue exit, in
the city and county of Philadelphia, when he observed a
motorcycle being operated by Appellant on the highway without
rear lights. He attempted to close the gap between his patrol
car and the motorcycle, and was initially unsuccessful, even after
accelerating to speeds exceeding one hundred and ten miles per
hour. Trooper Connor was able to get close enough to observe
that the motorcycle had a driver, a passenger, and no
registration tag. Trooper Connor observed Appellant’s
motorcycle traveling at high speeds, making multiple lane
changes without signaling, and passing other vehicles in an
unsafe manner. Trooper Connor activated his lights and sirens
and Appellant continued to accelerate on the highway. Trooper
Connor’s vehicle was between five yards and twenty yards
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behind the Appellant at various points of the pursuit while his
lights and sirens were activated.
[Appellant] exited Interstate 95 at the Academy Road exit.
After momentarily slowing down at a split in the road, Appellant
accelerated again toward Academy Road. Trooper Connor
observed the passenger look back towards him multiple times
during the pursuit. Eventually, Appellant slowed his motorcycle
and Trooper Connor accelerated past and “boxed the motorcycle
in” prior to the intersection of Frankford Avenue and Academy
Road. Appellant and his male passenger put up their hands and
were taken into custody. Trooper Connor estimated that
Appellant drove for approximately one mile or less after he
activated his lights and sirens to initiate a traffic stop.
Trooper Connor observed that Appellant had extremely
watery, red, glassy, blood shot eyes. He asked the Appellant for
his driver’s license, and Appellant replied that it was in his wallet
in his pocket. Trooper Connor retrieved the wallet with
Appellant’s permission. While retrieving his license, Trooper
Connor observed a small clear baggy containing a green leafy
substance, alleged marijuana. Trooper Connor inquired whether
Appellant’s eyes were red, watery, and glassy because Appellant
had been using marijuana. Appellant admitted that he had used
marijuana earlier in the day.
Appellant was arrested and transported to the Philadelphia
Police headquarters. Trooper Connor read him his O’Connell
Warnings and Appellant agreed to a blood draw. The blood
samples were marked with the case number K011942027, and
Trooper Connor transported them to an evidence locker. An
evidence custodian eventually transported the blood to DrugScan
for analysis.
Dr. Richard Cohn, forensic toxicologist and pharmacologist
for DrugScan, a federally certified laboratory, testified that the
blood associated with case number K011942027 was analyzed at
his direction. Dr. Cohn’s analysis of the data generated was that
5 nanograms of Delta 9 THC, marijuana constituent per milliliter
and greater than 50 nanograms of Delta 9 Carboxy THC, or
marijuana metabolite per milliliter was present in Appellant’s
blood. Dr. Cohn opined that the person whose blood was
analyzed had used marijuana not more than three or four hours
prior to the blood draw and that the marijuana impaired his
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ability to judge and perceive his surroundings, make safety
sensitive decisions, and adversely impacted his cognitive
faculties and motor skills to the extent it rendered him unfit to
safely operate a motor vehicle on the highway.
Trial Court Opinion, 3/12/15, at 2-4 (internal citations omitted).
As a result of this incident, Appellant was charged with fleeing or
attempting to elude police when given a visual or audible signal to stop,
driving under the influence (“DUI”) of a controlled substance, reckless
endangerment, and possession of marijuana. Appellant filed a pretrial
motion to suppress his statement admitting to previous marijuana use and
his blood sample results. The trial court granted the motion as to the
statement but denied suppression of the blood sample results. Following a
bench trial, Appellant was convicted of fleeing, as a felony of the third
degree, and driving under the influence. Appellant was acquitted of reckless
endangerment and possession of marijuana. Appellant was sentenced to the
mandatory minimum sentence of seventy-two hours to six months of
incarceration for the DUI, first offense conviction, and a consecutive six
months of probation for the fleeing conviction. Appellant filed a timely
notice of appeal. Both the trial court and Appellant complied with the
requirements of Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Because the drawing and testing of [A]ppellant’s blood
occurred in violation of the Implied Consent law and the
probable cause requirements of the federal and state
constitutions, was not the denial of [A]ppellant’s suppression
motion an error of law?
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2. Was not the evidence of fleeing or attempting to elude police
insufficient where the unrefuted trial evidence proved [A]ppellant
stopped his motorcycle as soon as he could do so safely after he
saw the patrol car’s lights and any contrary testimony from the
suppression hearing was never incorporated into the trial record?
Appellant’s Brief at 4.
When an appellant raises both a sufficiency-of-the-evidence issue and
a suppression issue, we address the sufficiency of the evidence supporting
the conviction first, and we do so without a diminished record:
[W]e are called upon to consider all of the testimony that was
presented to the jury during the trial, without consideration as to
the admissibility of that evidence. The question of sufficiency is
not assessed upon a diminished record. Where improperly
admitted evidence has been allowed to be considered by the
jury, its subsequent deletion does not justify a finding of
insufficient evidence. The remedy in such a case is the grant of
a new trial.
Commonwealth v. Sanford, 863 A.2d 428, 431–432 (Pa. 2004) (emphasis
in original). Thus, we begin by addressing the sufficiency of the evidence, as
“[t]he Double Jeopardy Clause bars retrial after a defendant’s conviction has
been overturned because of insufficient evidence.” Commonwealth v.
Mullins, 918 A.2d 82, 85 (Pa. 2007) (citations omitted).
Appellant asserts that there was insufficient evidence to establish that
Appellant fled from police. Appellant’s Brief at 20. Appellant contends that
the only evidence presented at trial regarding how Appellant came to a stop
was from Appellant’s passenger, who testified that once Appellant became
aware of the police car’s lights, he pulled over as soon as it was safely
possible to do so. Id. Appellant maintains that there was no contrary
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evidence because the Commonwealth failed to move for admission of the
suppression hearing testimony into the trial record. Id. at 21. As a result,
Appellant argues that the evidence cannot sustain his conviction for fleeing
or eluding the police. Id.
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the Commonwealth as
verdict winner, were sufficient to prove every element of the offense beyond
a reasonable doubt. Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa.
2009). “It is within the province of the fact-finder to determine the weight
to be accorded to each witness’s testimony and to believe all, part, or none
of the evidence.” Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.
Super. 2008). The Commonwealth may sustain its burden of proving every
element of the crime by means of wholly circumstantial evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).
Moreover, as an appellate court, we may not re-weigh the evidence and
substitute our judgment for that of the fact-finder. Commonwealth v.
Kelly, 78 A.3d 1136, 1139 (Pa. Super. 2013).
The offense of fleeing a police officer is defined as follows:
§ 3733. Fleeing or attempting to elude police officer
(a) Offense defined. -- Any driver of a motor vehicle who
willfully fails or refuses to bring his vehicle to a stop, or who
otherwise flees or attempts to elude a pursuing police officer,
when given a visual and audible signal to bring the vehicle to a
stop, commits an offense as graded in subsection (a.2).
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75 Pa.C.S. § 3733(a).
We first address Appellant’s claim that there was no evidence contrary
to the motorcycle passenger’s testimony because the Commonwealth failed
to move for admission of the suppression hearing testimony, which included
Trooper Brendan Connor’s testimony, at trial. Trooper Connor testified
during the suppression hearing immediately prior to the bench trial in this
case regarding Appellant’s actions. Appellant maintains that because the
suppression motion testimony was not incorporated, the only evidence this
Court may review for sufficiency purposes is the trial evidence. Appellant’s
Brief at 21.
We find this argument lacks merit on several grounds. First, Appellant
did not raise this issue before the trial court, either by objecting to reference
to the suppression hearing testimony during trial,1 or by specifically raising
this claim in his Pa.R.A.P. 1925(b) statement. See Hansley, 24 A.3d at 415(explaining that appellant’s Rule 1925(b) statement must be specific enough
for the trial court to identify and address the issue an appellant wishes to
raise on appeal, or the court may find waiver). As a result, this issue is
waived.
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1
We note that both parties and the trial court referenced the testimony
provided at the suppression hearing during the trial portion of this
proceeding.
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Additionally, even if Appellant had properly preserved this claim, we
cannot agree that the trial court was prohibited from considering the
testimony provided in the context of evidence on Appellant’s motion to
suppress. A review of the transcript reveals that the suppression hearing
merged seamlessly into the trial. The transcript itself reflects one
proceeding. The testimony related to the suppression hearing ended with
the trial judge’s decision to suppress Appellant’s statement only. N.T.,
9/8/14, at 32-33. The court further stated that there was probable cause to
obtain the blood test results and there was, therefore, enough evidence to
proceed to trial. Id. at 32-33. With that pronouncement, the
Commonwealth called to the witness stand, expert witness Dr. Richard Cohn,
to testify regarding the blood test results. Id. at 33. The trial continued
with the parties calling the remaining witnesses. Id. at 52-83.
In this case the suppression hearing and the trial proceeded before the
same judge. There was no jury to empanel or any other break in the
proceedings. Additionally, given the fact that it was a bench trial, the trial
judge could have taken judicial notice of the suppression proceedings. See
Pa.R.E. 201(b) (a court may take judicial notice of “a fact that is not subject
to reasonable dispute because it: (1) is generally known within the trial
court’s territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.”); Commonwealth v. Brown, 839 A.2d 433, 435 (Pa. Super.
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2003). Thus, while we acknowledge Appellant’s objection that the
suppression testimony was not formally incorporated into the trial, we
cannot agree that in this case the testimony from the suppression hearing
should be excluded from the trial court’s consideration. “To hold otherwise
would elevate form over substance, something this Court has repeatedly
refused to do.” Commonwealth v. Bricker, 581 A.2d 147, 160 (Pa. 1990).
The trial court provided the following analysis in support of its
conclusion that Appellant was guilty of fleeing an officer:
Trooper Connor observed Appellant operating a motorcycle
at extremely high speeds, without a rear light, and without an
appropriate registration tag. Trooper Connor engaged his lights
and sirens, and pursued Appellant with the vehicles in close
proximity, such that the flashing lights of Trooper Connor’s
vehicle would have been apparent to Appellant. Appellant did
not stop immediately, but continued for nearly one mile before
finally being boxed in by Trooper Connor. The evidence was
sufficient to prove that Appellant willfully failed to bring his
vehicle to a stop, but instead continued for nearly one mile.
Therefore, Appellant was properly convicted of fleeing. Because
the offense was committed concurrently with a violation of [75
Pa.C.S.] section 3802, the offense was properly graded as a
felony of the third degree.
Trial Court Opinion, 3/12/15, at 7.
The trial court’s conclusion is supported by the evidence of record.
Viewing all evidence in the light most favorable to the Commonwealth, we
agree there was sufficient evidence to convict Appellant of fleeing from a
police officer. The trial court found the testimony of Trooper Connor
credible. As an appellate court, we may not re-weigh the evidence and
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substitute our judgment for that of the fact-finder. Kelly, 78 A.3d at 1139.
Appellant’s first claim fails.
Next, Appellant argues that the state trooper did not have probable
cause to believe that Appellant was driving under the influence of alcohol or
a controlled substance and therefore, did not lawfully obtain Appellant’s
blood test results. Appellant’s Brief at 18. Id. Appellant contends that the
only indicia of intoxication was Appellant’s bloodshot, glassy eyes, which
Appellant asserts is consistent with driving a motorcycle at high rates of
speed. Id. Appellant also argues that his possession of marijuana and
admission to having smoked marijuana earlier in the day were not sufficient
to establish probable cause that Appellant was under the influence. Id. at
19. Accordingly, Appellant maintains, the trooper did not have probable
cause to test Appellant for intoxication. Id. at 20. Appellant asserts that his
blood test results therefore were unlawfully obtained and should have been
suppressed. Id. Appellant argues that he is entitled to a new trial without
admission of the unlawfully seized evidence. Id. at 13.
“When reviewing the propriety of a suppression order, an appellate
court is required to determine whether the record supports the suppression
court’s factual findings and whether the inferences and legal conclusions
drawn by the suppression court from those findings are appropriate.”
Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc).
“Where the Commonwealth prevailed on the suppression motion, we
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consider only the evidence of the prosecution and so much of the defense
that remains uncontradicted.” Commonwealth v. Cooper, 994 A.2d 589,
591 (Pa. Super. 2010).
With respect to factual findings, we are mindful that it is the sole
province of the suppression court to weigh the credibility of the
witnesses. Further, the suppression court judge is entitled to
believe all, part or none of the evidence presented.
Commonwealth v. Swartz, 787 A.2d 1021, 1023 (Pa. Super. 2001) (en
banc). To the extent that the suppression court’s factual findings are
supported by the record, “we are bound by those facts and will only reverse
if the legal conclusions are in error.” Cooper, 994 A.2d at 591. As an
appellate court, it is our duty “to determine if the suppression court properly
applied the law to the facts.” Commonwealth v. Maldonado, 14 A.3d
907, 910 (Pa. Super. 2011) (citation omitted).
Section 1547 of the vehicle code provides, in relevant part, as follows:
§ 1547. Chemical testing to determine amount of alcohol or
controlled substance
(a) General rule.--Any person who drives, operates or is in
actual physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given consent to one or
more chemical tests of breath, blood or urine for the purpose of
determining the alcoholic content of blood or the presence of a
controlled substance if a police officer has reasonable grounds to
believe the person to have been driving, operating or in actual
physical control of the movement of a vehicle:
(1) in violation of section 1543(b)(1.1) (relating to
driving while operating privilege is suspended or
revoked), 3802 (relating to driving under influence of
alcohol or controlled substance) or 3808(a)(2)
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(relating to illegally operating a motor vehicle not
equipped with ignition interlock); . . .
75 Pa.C.S. § 1547.2
The administration of a blood test is a search within the meaning of
Article I, section 8 of the Pennsylvania Constitution if performed by an agent
of, or at the direction of the government. Commonwealth v. Kohl, 615
A.2d 308, 315 (Pa. 1992). “Generally, a search or seizure is unreasonable
unless conducted pursuant to a valid search warrant upon a showing of
probable cause. The ‘implied consent’ provision of the Motor Vehicle Code,
however, dispenses with the need to obtain a warrant.” Commonwealth v.
Miller, 996 A.2d 508, 512 (Pa. Super. 2010).
[T]o administer a blood test under § 1547(a)(1), a police officer
need only have reasonable grounds to believe that a person was
driving under the influence of alcohol [or controlled substances].
Reasonable grounds has been interpreted to mean probable
cause; thus, the police officer must have knowledge of sufficient
facts and circumstances, gained through trustworthy
information, to warrant a prudent man in the belief that a crime
has been committed.
Commonwealth v. Jones, 121 A.3d 524, 528 (Pa. Super. 2015) (internal
citations and quotation marks omitted).
In addressing this claim, the trial court provided the following analysis:
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2
While our Supreme Court declared subsection (a)(2) unconstitutional,
Commonwealth v. Kohl, 615 A.2d 308 (Pa. 1992), this Court subsequently
reaffirmed the viability of the remaining provisions under subsection (a)(1).
Commonwealth v. Urbanski, 627 A.2d 789, 792 (Pa. Super. 1993).
Herein, Appellant’s arguments implicate subsection (1) only.
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Here, Trooper Connor observed Appellant operating a
motorcycle at extremely high speeds, without a rear light, and
without an appropriate registration tag. Appellant failed to yield
to Trooper Connor’s lights and sirens and pull over until the
trooper actually cut him off, preventing further egress.
Therefore, Appellant was subject to a lawful arrest for fleeing or
attempting to elude police. Appellant gave Trooper Connor
consent to open his wallet, and therefore, the packet of alleged
marijuana found within was subject to seizure under the plain
view doctrine.
The court excluded from its analysis Appellant’s statement.
Under the totality of the circumstances, Appellant’s reckless
speeding, Appellant’s failure to yield to Trooper Connor’s signal,
Appellant’s watery, bloodshot, glassy eyes, coupled with his
contemporaneous possession of a controlled substance were
sufficient for Trooper Connor to form a reasonable belief that
Appellant was driving under the influence of a controlled
substance. Therefore, Appellant’s motion to suppress blood
evidence was correctly denied.
Trial Court Opinion, 3/12/15, at 5.
The trial court’s summation of the evidence is supported by the
evidence of record. We agree with the trial court’s conclusion that Trooper
Connor had probable cause to believe that Appellant was driving under the
influence. We further note the distinction in cases involving alcohol-based
DUI’s and marijuana-based DUI’s:
[T]he Vehicle Code treats consumption of alcohol differently from
consumption of marijuana. The Vehicle Code does not preclude
an adult from consuming any amount of alcohol and then
operating a motor vehicle in Pennsylvania. See 75 Pa.C.S. §
3802(a). Instead, the Vehicle Code precludes the operation of a
motor vehicle only “after imbibing a sufficient amount of alcohol
such that the individual is rendered incapable of safely driving,
operating or being in actual physical control of the movement of
the vehicle.” 75 Pa.C.S. § 3802(a)(1). On the other hand, the
Vehicle Code precludes an individual from operating a motor
vehicle with any amount of scheduled controlled substance, or a
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metabolite thereof, in the driver’s blood. 75 Pa.C.S. § 3802(d).
Because marijuana is a Schedule I controlled substance, the
Vehicle Code prohibits an individual from operating a vehicle
after consuming any amount of marijuana. As a result, unlike
cases where police suspect alcohol-based DUI, evidence of
operator consumption of any marijuana is enough to allow police
to request a section 1547 blood test for suspected controlled
substance-based DUI.
Jones, 121 A.3d at 529. Thus, Appellant’s blood evidence was properly
obtained, and the trial court correctly declined to suppress this evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
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