J-S08040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JASON A. GABERSECK,                        :
                                               :
                       Appellant               :      No. 1412 WDA 2019

         Appeal from the Judgment of Sentence Entered August 8, 2019
                in the Court of Common Pleas of McKean County
             Criminal Division at No(s): CP-42-CR-0000108-2018

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 27, 2020

        Jason A. Gaberseck (“Gaberseck”) appeals from the judgment of

sentence imposed following his convictions of four counts of driving under the

influence of alcohol or controlled substance (“DUI”).1 We affirm.

        On December 30, 2017, at approximately 3:00 a.m., Pennsylvania State

Trooper Timothy Mix (“Trooper Mix”) observed a green Geo Tracker pull into

a parking lot shared by a Fox’s Pizza and a Dandy Minute Mart.            Both

businesses were closed.        Trooper Mix, accompanied by Pennsylvania State

Trooper Rooke (“Trooper Rooke”), performed a U-turn and pulled in behind

the Geo Tracker. Trooper Mix, without activating the overhead lights or siren,

stopped his marked police cruiser behind the Geo Tracker. Trooper Mix exited

his cruiser and approached the Geo Tracker.          As Trooper Mix approached,

Gaberseck, the sole occupant and driver of the vehicle, lowered his window.
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1   See 75 Pa.C.S.A. §§ 3802(a)(1), (c), (d)(1)(i), (d)(3).
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Trooper Mix asked if Gaberseck was okay. As Gaberseck responded, Trooper

Mix smelled alcohol on Gaberseck’s breath and inside of the vehicle. Trooper

Mix asked Gaberseck to exit the vehicle and to perform field sobriety tests,

which Gaberseck failed.

       Trooper Mix placed Gaberseck under arrest for suspicion of DUI, and

transported him to Bradford Regional Medical Center (“BRMC”) for a chemical

test of his blood alcohol content (“BAC”).       At BRMC, Trooper Mix read

Gaberseck the warnings contained on the Pennsylvania Department of

Transportation DL-26b form (“DL-26b”),2 in accordance with the mandate of

75 Pa.C.S.A. § 1547 (concerning blood or breath testing to determine amount

of alcohol/controlled substance, and the consequences for refusal to submit

to a test).     After Trooper Mix read Gaberseck the DL-26b, both he and

Gaberseck signed the form, and Gaberseck submitted to the blood test.

Gaberseck’s blood was transported to National Medical Services Laboratories

(“NMS Labs”), where a subsequent chemical analysis of Gaberseck’s blood

sample revealed that he had a BAC of 0.175%. The toxicology report also



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2 The DL-26b that Trooper Mix read to Gaberseck was the new version, which
had been revised in response to the decision of the United States Supreme
Court in Birchfield v. North Dakota, 135 S. Ct. 2160 (2016). In Birchfield,
the Supreme Court concluded that blood tests taken pursuant to implied
consent laws are an unconstitutional invasion of privacy. Id. at 2186. The
Supreme Court stated that “motorists cannot be deemed to have consented
to submit to a blood test on pain of committing a criminal offense.” Id.




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indicated the presence of the inactive metabolite of marijuana, delta 9 carboxy

THC, as well as the psychoactive component of marijuana, delta 9 THC.

       The Commonwealth charged Gaberseck with four counts of DUI, and

one count each of notice of change of name or address, careless driving, and

possession of drug paraphernalia.3             Gaberseck filed a pre-trial Motion to

suppress, alleging that Trooper Mix had conducted an unlawful investigative

detention of Gaberseck.         Following a suppression hearing, the trial court

entered an Order denying the Motion to suppress.

       The matter proceeded to a non-jury trial on June 21, 2019. When the

Commonwealth sought to admit the blood test result, Gaberseck’s counsel

objected several times, asserting that the chain of custody concerning the BAC

evidence was deficient. The trial court overruled the objections and admitted

the blood test result. Ultimately, the trial court found Gaberseck guilty of four

counts of DUI, and not guilty of the remaining charges.

       On August 15, 2019, the trial court sentenced Gaberseck to 5 years of

intermediate punishment, with the first 3 days to be served in the McKean

County Jail, the next 87 days in restorative sanctions/house arrest, followed

by the remaining time to be served on probation, plus fines and costs.

Gaberseck timely filed a Notice of Appeal and a court-ordered 1925(b) Concise

Statement of Errors Complained of on Appeal. The trial court issued a Rule

1925(a) Opinion.
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3 See 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3802(d)(1)(i), 3802(d)(3),
1515(a), 3714(a); 35 Pa.C.S.A. § 780-113(a)(32).

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      Gaberseck now presents the following issues for our review:

      (1) Whether the trial [c]ourt erred in denying a [M]otion to
      suppress evidence in[] finding that [Gaberseck]’s interaction with
      police was the result of a mere encounter requiring no level of
      suspicion or probable cause?

      (2) Whether the trial [c]ourt erred in ruling that the [NMS Labs]
      report was admissible at the non-jury trial[], based on evidence
      presented at the time of trial?

Brief for Appellant at 4.

      In his first issue, Gaberseck argues that the trial court erred in denying

his Motion to suppress, where the trial court determined that Gaberseck had

been subject to a mere encounter. Id. at 15. Gaberseck contends that a

reasonable person in his situation would not have felt free to leave under the

circumstances.    Id. at 15, 20-21.   Specifically, Gaberseck claims that his

interaction with Trooper Mix was actually an investigative detention, because

Trooper Mix pulled his cruiser behind Gaberseck’s car in the parking lot, exited

his vehicle, and approached Gaberseck’s car. Id. at 20. Gaberseck further

contends that Trooper Mix had no reason to approach Gaberseck because he

had not observed any traffic violations or any signs of distress from Gaberseck

or his vehicle. Id. at 20-21.

      We adhere to the following standard of review:

      We may consider only the Commonwealth’s evidence 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 record
      supports the factual findings of the trial court, we are bound by
      those facts and may reverse only if the legal conclusions drawn



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      therefrom are in error. An appellate court, of course, is not bound
      by the suppression court’s conclusions of law.

Commonwealth v. Hampton, 204 A.3d 452, 456 (Pa. Super. 2019).

      “The Fourth Amendment of the Federal Constitution and Article I,

Section     8   of   the   Pennsylvania   Constitution   protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012).          There are three categories of interactions

between police and a citizen:

      The first of these is a “mere encounter” (or request for
      information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or to respond.
      The second, an “investigative detention[,]” must be supported by
      a reasonable suspicion; it subjects a suspect to a stop and a period
      of detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of an arrest. Finally, an arrest
      or “custodial detention” must be supported by probable cause.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation

omitted).       When determining whether an individual is subject to a mere

encounter or an investigative detention, “[t]he pivotal inquiry is whether, in

light of the facts and circumstances, a reasonable man, innocent of any crime,

would have thought he was being restrained had he been in the defendant’s

shoes.” Hampton, 204 A.3d at 458.

      Instantly, the trial court, in its Opinion, found that Gaberseck was

subject to a mere encounter:

      [Gaberseck] voluntarily pulled his vehicle over and parked in a
      public area. The lights and siren[] on Trooper Mix’s patrol vehicle
      were not activated.      The patrol vehicle was parked behind
      [Gaberseck]’s vehicle and, therefore, [Gaberseck’s vehicle] was

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       not blocked in. Trooper Mix did not draw his service weapon or
       threaten [Gaberseck]. Therefore, [Trooper Mix’s] interaction with
       [Gaberseck] was a mere encounter.

Trial Court Opinion, 10/14/19, at 8.

       Our review of the record shows, here, Trooper Mix, the sole witness at

the suppression hearing, testified that Gaberseck pulled off the roadway into

a public parking lot of two closed businesses. N.T., 8/8/18, at 6, 13. Trooper

Mix drove past the parking lot, performed a U-turn, and returned to see

Gaberseck’s vehicle still parked in the parking lot. Id. at 14-15. Trooper Mix

then pulled his cruiser in behind Gaberseck’s vehicle. Id. at 6, 14-15. At no

point did Trooper Mix activate his lights or siren. Id. at 7. Moreover, Trooper

Mix did not position his cruiser in a way that would block Gaberseck’s only

avenue of exit, and Gaberseck was capable of leaving the area. Id. at 7, 11.

Additionally, Trooper Mix approached Gaberseck’s vehicle alone, and did not

issue any commands to Gaberseck. Id. at 6-8, 11. In fact, Gaberseck lowered

his window to engage with Trooper Mix of his own volition.         Id. at 7.   As

Trooper Mix and Gaberseck began conversing, Trooper Mix could smell a

strong odor of alcohol on Gaberseck’s breath.4 Id.




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4  At the suppression hearing, Gaberseck’s counsel stated, “we stipulate
[Trooper Mix] had reason to take [Gaberseck] for blood. Our issue is
challenging the initial interaction with the vehicle after [Trooper Mix] talked to
[Gaberseck]. We didn’t challenge anything after that point. … I will stipulate
from the point [Gaberseck] rolled down his window, [Trooper Mix] had clear
reason to continue the detention.” Id. at 8-9.

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      In Hampton, the defendant drove his vehicle into the field of a privately

owned church. Id. The police pulled in behind him, “effectively blocking his

exit as his vehicle was facing a building, and he could not travel forward.” Id.

In ruling that a reasonable person in the defendant’s shoes would not have

felt free to leave, this Court focused on the restriction of the defendant’s

freedom of movement “by means of physical force” by the police.             Id.

Specifically, this Court concluded that the defendant was subject to an

investigative detention when the officer parked behind defendant’s vehicle in

a way that completely blocked defendant’s only means of leaving the area.

Id.

      Additionally, our Supreme Court has found that an individual was

“seized” when an officer prevented the individual from exiting his vehicle by

closing the door when the individual opened it. Commonwealth v. Adams,

205 A.3d 1195, 1200 (Pa. 2019). In Adams, our Supreme Court stated that

an “act of physical force and a show of authority is precisely the type of

escalatory factor” that shows a seizure had occurred. Id. at 1200-01. This

type of police action is clearly distinguishable from a request.           See,

Commonwealth v. Au, 42 A.3d 1002, 1007 n.3 (Pa. 2012) (stating that

when considering whether an individual has been “seized,” a “request

obviously differs from a demand”).

      Given the totality of the circumstances, we conclude that Trooper Mix’s

interaction with Gaberseck was a mere encounter, and did not require


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reasonable suspicion.         See Hampton, supra; see also Au, supra.

Accordingly, the trial court did not err in denying Gaberseck’s Motion to

suppress.

       In his second issue, Gaberseck contends that the trial court erred by

overruling his objections to the admission of the BAC results, and that the trial

court admitted the BAC results in violation of Gaberseck’s right to

confrontation.5 See Brief for Appellant at 21, 24. Gaberseck challenges the

chain of custody concerning the BAC results, where the phlebotomist, Angela

Fox (“Fox”), who drew his blood, had no memory of him, just a vague memory

of “[]drawing a DUI[] with Trooper Mix present.” Id. at 21, 22. Gaberseck

also claims that there was a lack of testimony explaining how NMS Labs

received the blood sample. Id. at 23. Specifically, Gaberseck contends that

Fox put two sets of initials on the form, but the forensic toxicologist at NMS

Labs, Jolene Bierly (“Bierly”), was unable to identify whose initials were on the

sample that was tested.              Id.       Gaberseck further argues that the

Commonwealth failed to present any photographs or other documentation




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5 To the extent Gaberseck raises a challenge under the Confrontation Clause,
we observe that Gaberseck failed to raise such a claim in his Concise
Statement. See Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not
included in the [Concise] Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.). Even if Gaberseck had
properly preserved this claim, we would conclude that Gaberseck is not
entitled to relief for the reasons set forth by the trial court. See Trial Court
Opinion, 10/14/19, at 10-13.

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that could “even circumstantially conclude that the sample provided by

[Gaberseck] was the one tested by NMS [Labs].” Id.

         Initially, we observe that Gaberseck conflates several distinct issues in

the argument section of his brief, none of which is adequately developed for

review. Pa.R.A.P. 2119(a) (providing that “[t]he argument shall be divided

into as many parts as there are questions to be argued; and shall have at the

head of each part--in distinctive type or in type distinctively displayed--the

particular point treated therein, followed by such discussion and citation of

authorities as are deemed pertinent); see also Commonwealth v. Samuel,

102 A.3d 1001, 1005 (Pa. Super. 2014) (concluding that appellant waived his

claim by failing to adequately develop his argument or provide citation to and

discussion     of   relevant   authority).      Nevertheless,   we   briefly   address

Gaberseck’s primary claim that the Commonwealth failed to establish

appropriate chain of custody of the disputed evidence. See Brief for Appellant

at 21.

         When considering the admissibility of evidence, we adhere to the

following standard:

         The admissibility of evidence is a matter for the discretion of the
         trial court and a ruling thereon will be reversed on appeal only
         upon a showing that the trial court committed an abuse of
         discretion. An abuse of discretion may not be found merely
         because an appellate court might have reached a different
         conclusion, but requires a result of manifest unreasonableness, or
         partiality, prejudice, bias, or ill-will, or such lack of support so as
         to be clearly erroneous.




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Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

      We review a challenge concerning a chain of custody under the following

standard:

      While the Commonwealth bears the burden of demonstrating
      some reasonable connection between the prof[f]ered exhibits and
      the true evidence, it need not establish the sanctity of its exhibits
      beyond a moral certainty. The Commonwealth need not produce
      every individual who came into contact with an item of evidence,
      nor must it eliminate every hypothetical possibility of
      tampering. A complete chain of custody is not required so long as
      the Commonwealth’s evidence, direct and circumstantial,
      establishes a reasonable inference that the identity and condition
      of the exhibits have remained the same from the time they were
      first received until the time of trial. Any gaps in testimony
      regarding the chain of custody go to the weight to be given the
      testimony, not to its admissibility.

Commonwealth v. Cugaini, 452 A.2d 1064, 1065 (Pa. Super. 1982)

(citations omitted).

      Gaberseck’s allegation goes to the weight to be afforded to the evidence.

See Commonwealth v. Bolden, 406 A.2d 333, 335-36 (Pa. 1979) (stating

that gaps in testimony regarding the chain of custody go to the weight to be

given the testimony, not to its admissibility). The evidence presented here,

direct and circumstantial, sufficiently established a reasonable inference that




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the identity and condition of the exhibit remained unimpaired.6

       Instantly, Trooper Mix testified that he brought Gaberseck to BRMC for

a blood draw.       Notes of Testimony, 6/21/19, at 89.          Trooper Mix and

Gaberseck both signed the DL-26b, whereby Gaberseck consented to the

blood draw. Id. Trooper Mix saw Fox draw Gaberseck’s blood. Id. Trooper

Mix then saw Fox label and seal the tubes of blood, before placing the tubes

into the box, and then sealing that box. Id.

       Fox testified that once the blood is drawn in the vials, the vials are sealed

and placed in a box to be sent to NMS Labs, which is also sealed. Id. at 15.

The box is then placed in a refrigerator until it is sent to NMS Labs. Id. Fox

testified that these procedures were followed in the instant case. Id. at 16-

17. Fox did not personally send the box to NMS Labs. Id.

       Bierly testified about the chain of custody process NMS Labs uses when

it receives evidence from an outside source. Id. at 26-27. Initially, the blood

sample is received by NMS Labs and is inspected to ensure it “[is] in the

appropriate condition[]” before it is opened and logged into the computer

system. Id. The blood sample is given a unique work order number, which

is printed out on barcodes, and is used to create the internal chain of custody.



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6 See Commonwealth v. Feliciano, 67 A.3d 19 (Pa. Super. 2013). There is
no rule requiring that the prosecution produce as witnesses all persons who
are in a position to come into contact with the article sought to be introduced
into evidence. Cugaini, supra.


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Id. Those barcodes are then placed on “the documentation, the evidence kit,

the blood tubes, everything” and those barcodes are scanned every time the

evidence is moved throughout NMS Labs. Id. The blood sample is then stored

in a “limited-access refrigerator until testing begins.”   Id.   Bierly further

testified that she cross-references every work order number, subject name,

agency case number, and submitting agency between every item and

document she receives. Id. at 32.      Bierly testified that NMS Labs received

Gaberseck’s blood on January 3, 2018, and her subordinates logged the name

“Jason Gaberseck” on the submission documentation in the report. Id. at 29,

32.

      We conclude that the chain of custody presented by the Commonwealth

was more than sufficient. Here, the Commonwealth presented the testimony

of Fox, who testified as to the procedures of BRMC. Both Fox and Trooper Mix

testified that those procedures were followed. Bierly testified about the chain

of custody procedures at NMS Labs and personally verified that each step was

followed. Gaberseck fails to show any indication that the tested blood is not

the blood that Fox drew and Bierly analyzed. Accordingly, Gaberseck is not

entitled to relief on this claim.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




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